United States District Court, D. Connecticut
RULING AND ORDER
N. Chatigny, United States District Judge.
Green, Sr., proceeding pro se, brings this action under 28
U.S.C. § 2255. In essence, the petition seeks to reopen
the underlying criminal case, United States v.
Green, Case No. 3:14-cr-111(RNC), to enable Mr. Green to
seek to recover items of personal property that were seized
incident to his arrest. A related civil action brought by Mr.
Green seeking return of the same property has been dismissed
based on the Government's showing that it never possessed
the property in question. The dismissal of that action bars
Mr. Green from pursuing this action insofar as it seeks
return of the same property. Because it does not appear that
Mr. Green is seeking any other relief, this action is
October 2013, Stamford police officers executed a search
warrant at Mr. Green's residence, where they seized an
eyeglasses case containing eyeglasses and three knotted
baggies of cocaine; a hand-rolled marijuana cigarette; other
drug paraphernalia; a revolver; $121 in cash; mail; and a
cell phone. Mr. Green was arrested and charged with state
firearm and drug offenses. At the time of the arrest, Mr.
Green was serving a three-year term of federal supervised
release as a result of his conviction for conspiracy to
distribute cocaine. See United States v. Green, Case
No. 3:10-CR-128, Judgment, ECF No. 648 (D. Conn. June 7,
2014, the state charges were nolled following the return of a
federal indictment charging Mr. Green with unlawful
possession of the firearm and cocaine. The Stamford Police
Department transferred the firearm and cocaine to the Bureau
of Alcohol, Tobacco, Firearms and Explosives
(“ATF”). In June 2014, the Connecticut Superior
Court ordered the destruction of the remaining items except
the $121 in cash, which was ordered forfeited.
Green pleaded guilty to unlawfully possessing the firearm and
violating the conditions of his supervised release
prohibiting him from engaging in new criminal conduct. Mr.
Green's plea agreement included a waiver of his right to
appeal or collaterally attack his conviction or sentence if
the total sentence did not exceed 48 months'
imprisonment. United States v. Green,
3:14-cr-111(RNC), Plea Agreement, ECF No. 50 at 6.
2015, Mr. Green was given consecutive sentences of 37
months' imprisonment for the firearm, which was below the
guideline range of 57 to 71 months, and 11 months'
imprisonment for the supervised release violations, which was
below the guideline range of 18 to 24 months. Mr. Green was
notified that although he had waived his right to appeal, he
could still appeal if he thought his guilty plea and waiver
were invalid due to a violation of his constitutional rights.
No appeal was filed.
October 2015, Mr. Green brought this action. The petition
alleged that Mr. Green's attorney and the federal
prosecutor had promised that the property seized by the
Stamford police would be returned to him, but the property
had not been returned. The petition alleged that Mr.
Green's counsel had violated the Sixth Amendment by
advising him to plead guilty without ensuring the property
would be returned and by failing to file a requested
“appeal” seeking return of the property.
response to the petition, the Government argued that the
action was procedurally barred by Mr. Green's failure to
file a motion for return of the property pursuant to Fed. R.
Crim. P. 41(g). Mr. Green then simultaneously filed a Rule
41(g) motion in the criminal case seeking return of the
property, see United States v. Green,
3:14-cr-111(RNC), Def.'s Mot. To Return Property, ECF No.
75 (Jan. 19, 2016), along with a civil rights complaint
seeking return of the property, see Green v.
Stamford, 3:16-cv-79(RNC). The Rule 41(g) motion was
treated as the initial pleading in a civil action against the
Government and became part of the civil rights case. The
Government moved to dismiss the action pointing out that the
only seized items received by ATF were the firearm and
narcotics. The Government's submission was supported by
records of the Connecticut Superior Court, Stamford Police
Department and ATF. Mr. Green offered no evidence suggesting
that any other items were transferred to ATF. Accordingly,
the action was dismissed. See Green v. United
States, No. 3:16-CV-79(RNC), 2017 WL 374460 (D. Conn.
Jan. 25, 2017). Mr. Green did not appeal.
2255(a) provides a remedy for a federal prisoner whose
sentence was imposed in violation of the Constitution. Mr.
Green does not challenge his conviction or his sentence,
which was well below the bottom of the total sentence
suggested by the applicable guidelines. Instead, he complains
that his defense counsel failed to ensure his property would
be returned and failed to comply with his request that an
appeal be filed seeking return of the property.
Mr. Green's allegations can be considered by the Court,
notwithstanding the collateral attack waiver in the plea
agreement, the action must be dismissed. To bring an
ineffective assistance of counsel claim, Mr. Green must show
that (1) his counsel's performance was objectively
deficient, and (2) the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Mr. Green contends that he repeatedly asked his
attorney “to file an appeal on my behalf, specifically,
under Fed. R. Crim. P. 41(g) for the return of my property,
” and his attorney failed to do so. Pet. (ECF No. 1),
at 5. This constituted deficient performance, he contends,
because “a lawyer who disregards specific instructions
from the defendant to file a notice of appeal acts in a
manner that is professionally unreasonable.” Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000). It is true that
defense counsel must file a notice of appeal when requested
by the defendant, even when there appears to be no
non-frivolous issue for appeal, and even when the defendant
has waived his right to appeal. See Campusano v. United
States, 442 F.3d 770, 775 (2d Cir. 2006). But that
obligation is premised on preserving the defendant's
right to file a direct appeal challenging his conviction or
sentence. In such a case, the remedy for counsel's
failure to file the notice of appeal is providing the
defendant with a direct appeal. Id. at 776-77. Here,
Mr. Green did not ask his counsel to appeal either his
conviction or his sentence. Rather, he asked his counsel to
file an appeal for the sole purpose of obtaining return of
his property. I do not read Campusano to require
defense counsel to file a notice of appeal when all the
defendant seeks is return of property and no Rule 41(g)
motion has been filed in district court. Even if Mr.
Green's counsel had an obligation to file a requested
appeal seeking return of the property, which I do not think
they did, the property in question was never transferred to
ATF and, as a result, their failure to file the requested
appeal caused no prejudice.
the petition is hereby dismissed. Reasonable jurists would
not find it debatable that the action should be dismissed so
a certificate of appealability will not ...