United States District Court, D. Connecticut
DAVID J. CRESPO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RULING RE: AMENDED MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DOC. NO.
C. Hall, United States District Judge
petitioner, David J. Crespo (“Crespo”), filed a
Motion to Vacate, Set Aside or Correct Sentence pursuant to
section 2255 of title 28 of the United States Code on April
28, 2017. See Motion to Vacate, Set Aside or Correct
Sentence (“Mot. to Vacate”) (Doc. No. 1).
Subsequently, this court appointed counsel to represent
Crespo on May II, 2017. (Doc. No. 8). On August 7, 2017,
counsel for Crespo filed an Amended Motion to Vacate, Correct
or Set Aside Sentence (“Am. Mot. to Vacate”)
(Doc. No. 15), which is currently pending before this court.
argues that his trial counsel was ineffective for permitting
the government to interview the defense's expert witness,
Dr. Jay St. Mark, the day before Crespo's sentencing
without Crespo's permission to waive the attorney-client
privilege. See generally Am. Mot. to Vacate at
11-18. He also argues that his trial counsel was ineffective
for failing to cross-examine a government witness, Mark
Lewis, at the sentencing hearing about an inconsistency in
his statements regarding the price of a painting that the
sentencing court relied on in determining intended loss.
See generally id. at 19-28. The respondent, the
United States (“the government”), opposes
Crespo's Motion. See Government's Response
to Defendant's Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence
(“Gov't's Resp.”) (Doc. No. 19).
reasons set forth below, Crespo's Amended Motion to
Vacate is DENIED.
April 3, 2012, Crespo was arrested on a complaint charging
him with mail fraud, in violation of section 1341 of title 18
of the United States Code, and wire fraud, in violation of
section 1343 of title 18 of the United States Code, involving
the sale of fake Chagall and Picasso artwork. Crespo Criminal
Docket, Complaint (Doc. No. 1). Attorney Richard Marquette,
who had previously represented Crespo on a retained basis,
was appointed to represent Crespo. (Doc. No. 11). On August
8, 2012, a grand jury indicted Crespo on nine counts of wire
fraud and three counts of mail fraud. (Doc. No. 15). On
September 3, 2013, Crespo pled guilty before Judge Ellen B.
Burns to Count Twelve of the Indictment, which charged him
with the sale of a purported Chagall lithograph. (Doc. No.
5, 2014, the final Presentence Report was filed. Crespo
Criminal Docket, PSR (Doc. No. 83). On September 9, 2014,
Crespo and Attorney Marquette filed a letter objecting to
nearly all of the offense conduct detailed in the Presentence
Report. (Doc. No. 198-1). In order to resolve Crespo's
objections, on December 16 and 17, 2014, Judge Burns held a
hearing at which the government called the case agent, three
victims, and a second FBI agent who was present for an
interview of Crespo. Joint Appendix (“JA”) at
214-613. Crespo called his treating physician and
testified himself. Id.
January 16, 2015, Judge Burns sentenced Crespo to 57 months
of incarceration, followed by three years of supervised
release. Crespo Criminal Docket, Minute Entry (Doc. No. 131).
Judge Burns also ordered restitution, which would be
determined at a later date. Id. Judgment was entered
on January 30, 2015 (Doc. No. 132)), and Crespo filed a
notice of appeal on the same day (Doc. No. 134). On February
5, 2015, Judge Burns issued a memorandum describing how she
had calculated Crespo's guidelines range. JA 734-38.
Subsequently, Attorney Marquette withdrew as Crespo's
counsel and was replaced by Assistant Federal Defender David
Keenan, who represented Crespo at the restitution proceedings
and on appeal.
1, 2015, having been transferred the case after Judge
Burns's retirement, the undersigned ordered Crespo to pay
$336, 306 in restitution to 12 victims. JA 870-73. Crespo
filed a Notice of Appeal challenging the Restitution Order on
July 6, 2015. Crespo Criminal Docket, Notice of Appeal (Doc.
1, 2016, the Second Circuit affirmed Crespo's conviction
and sentence. United States v. Crespo, 651 Fed.
App'x 10 (2d Cir. 2016). The court rejected Crespo's
claims that the district court erred in accepting his guilty
plea and that the district court erred substantively and
procedurally in imposing his sentence. See id. The
court declined to resolve Crespo's claim as to
ineffectiveness of counsel based on the government's
interview of Dr. Jay St. Mark, the defense expert Crespo had
retained to assist in his defense at his sentencing. See
id. at 15.
collateral challenges are in tension with society's
strong interest in the finality of criminal convictions, the
courts have established rules that make it more difficult for
a defendant to upset a conviction by collateral, as opposed
to direct, attack.” Yick Man Mui v. United
States, 614 F.3d 50, 53 (2d Cir. 2010) (internal
quotation marks omitted). Section 2255 of title 28 of the
United States Code permits a federal prisoner to move to
vacate, set aside, or correct his sentence “upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a) (2016). Therefore, relief is available
“under § 2255 only for a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of
law that constitutes a fundamental defect which inherently
results in a complete miscarriage of justice.”
Cuoco v. United States, 208 F.3d 27, 30 (2d Cir.
2000) (quoting United States v. Bokun, 73 F.3d 8, 12
(2d Cir. 1995)).
petitioner bears the burden of proving he is entitled to
relief by a preponderance of the evidence. See Skaftouros
v. United States, 667 F.3d 144, 158 (2d Cir. 2011). In
deciding a section 2255 motion, the court must hold a
hearing, “unless the motion and the files and records
of the case conclusively show that the plaintiff is entitled
to no relief.” 28 U.S.C. § 2255(b). However, a
petitioner is not automatically entitled to a hearing, and no
hearing is required where a petitioner's
“allegations are ‘vague, conclusory, or palpably
incredible.'” Gonzalez v. United States,
722 F.3d 118, 130 (2d Cir. 2013) (quoting Machibroda v.
United States, 368 U.S. 487, 495 (1962)). To determine
whether a prisoner is entitled to an evidentiary hearing on
the motion, the court looks “primarily to the affidavit
or other evidence proffered in support of the application in
order to determine whether, if the evidence should be offered
at a hearing, it would be admissible proof entitling the
petitioner to relief.” LoCasc ...