United States District Court, D. Connecticut
RULING ON MOTION PURSUANT TO 28 U.S.C. §
ALVIN W. THOMPSON UNITED STATES DISTRICT JUDGE.
Daniel Estremera, proceeding pro se, has filed a petition
pursuant to 28 U.S.C. § 2255 to vacate, set aside or
correct his sentence. The petitioner claims that his prior
convictions were insufficient to trigger an enhanced
mandatory minimum penalty pursuant to 21 U.S.C § 851.
For the reasons set forth below, the petitioner's
contentions are without merit, and the motion is being denied
without a hearing.
FACTUAL AND PROCEDURAL BACKGROUND
March 2007, a federal grand jury returned an Indictment
charging the petitioner and 19 other defendants with
conspiracy to possess with intent to distribute one kilogram
or more of heroin in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)(i) and 846. On May 7, 2008, the
government filed a second offender information pursuant to 21
U.S.C § 851, asserting that the petitioner had been
convicted of three narcotics felonies in 1997 and 1998 and
stating that the petitioner faced a term of imprisonment of
up to life, a mandatory minimum term of 10 years in prison, a
maximum fine of $4, 000, 000 and a mandatory term of
supervised release of at least eight years.
8, 2008, the petitioner pled guilty to a substitute
information charging him with conspiracy to possess with
intent to distribute 100 grams or more of heroin. In his plea
agreement, the petitioner agreed that, after the enhancement
pursuant to Section 851, he faced a mandatory minimum term of
10 years of imprisonment and a Guidelines range of at least
120 months of imprisonment.
petitioner acknowledged in his plea agreement that his
Guidelines range might be as high as 262 to 327 months of
imprisonment, because, at the time he pled guilty, it
appeared that the petitioner qualified as a career offender.
The petitioner also expressly waived his right to appeal or
collaterally attack his sentence if the sentence did not
exceed 262 months of imprisonment.
September 18, 2008, the Second Circuit decided United
States v. Savage, 542 F.3d 959 (2d Cir. 2008). In
Savage, the court held that a federal defendant's prior
conviction that was entered pursuant to an Alford plea, i.e.
a plea in which a defendant is “unwilling or unable to
admit his participation in the acts constituting the crime,
” could not categorically qualify as a
“controlled substance offense, ” as that term is
defined in Section 4B1.2(b) of the Guidelines, and,
consequently, could not support a career offender enhancement
under Section 4B1.1 of the Guidelines. Id. at 962,
964 (quoting North Carolina v. Alford, 400 U.S. 25,
February 10, 2009, the petitioner was sentenced. At
sentencing, the government informed the court that it was
clear that two of Estremera's prior convictions (Docket
Nos. H14H-CR960496486S and H14H-CR970509267S) were the result
of Alford pleas, so the government could not establish that
Estremera was a career offender.
was sentenced to a mandatory minimum term of 10 years of
imprisonment, to be followed by an eight-year term of
supervised release, on the charge contained in the substitute
information. The petitioner did not appeal his sentence, and
on February 21, 2009, the time period within which Estremera
was required to file a direct appeal expired.
29, 2009, the government filed a sentencing memorandum in an
unrelated case, i.e. United States v. Jackson,
3:06cr151 (MRK), acknowledging that the reasoning of Savage
should be extended to apply to second offender enhancements
under 21 U.S.C. § 851. On August 10, 2009, Judge Kravitz
granted the government's motion to withdraw the §
851 second offender information that had been filed in the
Jackson case, thus recognizing the legal basis for the claim
Estremera appears to assert in his habeas petition.
February 21, 2010, the one-year statute of limitations on
Estremera's right to file a habeas petition
expired. On September 22, 2011, i.e. approximately 31 months
after Estremera had been sentenced and 19 months after the
statute of limitations on his habeas claim had run,
Estremera filed the petition in Case No. 3:11cv1474.
prisoners can challenge a criminal sentence pursuant to 28
U.S.C. § 2255 only in limited circumstances.
[A] “collateral attack on a final judgment in a
criminal case is generally available under § 2255 only
for a constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes
‘a fundamental defect which inherently results in
complete miscarriage of justice.'”
Graziano v. United States, 83 F.3d 587, 589-90 (2d
Cir. 1996) (citing United States v. Bokun, 73 F.3d
8, 12 (2d Cir. 1995)).
[N]ot “every asserted error of law can be raised on a
§ 2255 motion.” See Davis v. United
States, 417 U.S. 333, 346 (1974) . . . . The grounds
provided in section 2255 for collateral attack on a final
judgment in a federal criminal case are narrowly limited, and
it has “long been settled law that an error that may
justify reversal on direct appeal will not necessarily
support a collateral attack on a final judgment.”
United States v. Addonizio, 442 U.S. 178, 184 (1979)
. . . .”
Napoli v. United States, 32 F.3d 31, 35 (2d Cir.
1994), amended on reh'g on other grounds, 45 F.3d 680 (2d
Cir. 1995). Constitutional errors will not be corrected
through a writ of habeas corpus unless they have had a
“substantial and injurious effect, ” that is,
unless they have resulted in “actual prejudice.”
Brecht v. Abrahamson, 507 U.S. 619, 623, 637-38
(1993); see also Underwood v. United States, 166
F.3d 84, 87 (2d Cir. 1999) (applying Brecht to § 2255
§ 2255 motion may not relitigate issues that were raised
and considered on direct appeal.” United States v.
Perez, 129 F.3d 255, 260 (2d Cir. 1997) (declined to
review plea withdrawal claim that had already been argued on
appeal). This “so-called mandate rule bars
re-litigation of issues already decided on direct
appeal.” Yick Man Mui v. United States, 614
F.3d 50, 54 (2d Cir. 2010)(citation omitted). “The
mandate rule prevents re-litigation in the district court not
only of matters expressly decided by the appellate court, but
also precludes re-litigation of issues impliedly resolved by
the appellate court's mandate.” Yick Man
Mui, 614 F.3d at 53.
to raise a claim on direct appeal is itself a default of
normal appellate procedure, which a defendant can overcome
only by showing cause and prejudice.” Campino v.
United States, 968 F.2d 187, 190 (2d Cir. 1992). This
rule is applied because of concerns about “finality,
accuracy and the integrity of prior proceedings, as well as
concerns of judicial economy.” Id.
“[C]ollateral review of convictions ‘places a
heavy burden on scarce judicial resources, may give litigants
incentives to withhold claims for manipulative purposes, and
may create disincentives to present claims when evidence is
fresh.'” Id. (quoting Keeney v. Tamayo
Reyes, 504 U.S. 1, 7 (1992)).
obtain review of procedurally defaulted claims, the
petitioner must show both “cause” for the default
of each claim and “prejudice” that resulted from
the alleged violation. See Ciak v. United States, 59
F.3d 296, 301, 302 (2d Cir. 1995), abrogated on other grounds
by Mickens v. Taylor, 535 U.S. 162, 172 n.3 (2002)
(quoting Wainwright v. Sykes, 433 U.S. 72, 87
(1977)). “Where the petitioner--whether a state or
federal prisoner--failed properly to raise his claim on
direct review, the writ is available only if the petitioner
establishes ‘cause' for the waiver and shows
‘actual prejudice from the alleged . . .
violation.'” Reed v. Farley, 512 U.S. 339,
354 (1994) (quoting Wainwright, 433 U.S. at 84).
under the cause and prejudice test must be something
external to the petitioner, something that cannot
fairly be attributed to him”. Coleman v.
Thompson, 501 U.S. 722, 753 (1991) (emphasis in
original). “[T]he existence of cause for a procedural
default must ordinarily turn on whether the prisoner can show
that some objective factor external to the defense impeded
counsel's efforts to comply with the . . . procedural
rule.” Id. (quotation marks omitted) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)).
demonstrate prejudice, a petitioner must convince the court
“that ‘there is a reasonable probability'
that the result of the trial would have been different”
if not for the alleged error. Strickler v. Greene,527 U.S. 263, 289 (1999) (applying the cause-and-prejudice
standard to a state procedural default in a § 2254
habeas case). The question is whether, despite the error,
“[the petitioner] received a fair trial, understood as
a trial resulting in a verdict worthy of ...