United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [DKT.
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE
Marlon Gonzalez (“Petitioner” or “Mr.
Gonzalez”), seeks to have his conviction and sentence
vacated pursuant to 28 U.S.C. § 2255. He claims three
grounds of ineffective assistance of counsel. However, Mr.
Gonzalez failed to file his petition within the one year
statute of limitations set by AEDPA and has failed to show
that he is entitled to equitable tolling, nor does he show
that he is entitled to relief on the merits. Thus, as
explained further below, Mr. Gonzalez's § 2255
motion is DENIED.
jury indicted Marlon Gonzalez on November 19, 2014 for
conspiracy to possess with the intent to distribute cocaine
and crack cocaine. USA v. Gonzalez, No. 14-cr-225
(hereinafter “Gonzalez”), [Dkt. 1 (Crim.
Compl.)]. On September 9, 2015, Mr. Gonzalez pled guilty to
conspiracy to possess with intent to distribute 280 grams or
more of cocaine base in violation of 21 U.S.C §§
841(a)(1), 841(b)(1)(A) and 846, as alleged in Count One of
the indictment. Gonzalez, [Dkt. 206 (Plea
Agreement)]. The violation carried a statutory mandatory
minimum sentence of incarceration of 120 months. Id.
Plea Agreement, the parties stipulated that a quantity of 280
grams of cocaine base was reasonably foreseeable to Mr.
Gonzalez as a result of his participation in the conspiracy
charged in Count One. Id. at 4. The parties further
stipulated that Mr. Gonzalez's base offense level under
U.S.S.G. § 2D1.1(C) is 30, three levels would be added
under U.S.S.G. § 3B1.1(b) as a result of Mr.
Gonzalez's role as a manager or supervisor of the
criminal activity, two levels would be added under U.S.S.G.
§ 2D1.1(b)(1) because Mr. Gonzalez possessed a firearm
during the offense, and three levels would be deducted under
U.S.S.G. § 3E1.1 for acceptance of responsibility,
assuming he remained eligible. Id. With a total
offense level of 32 and a criminal history category of II,
the applicable Sentencing Guidelines range was 135 to 168
months of imprisonment. Id.
Plea Agreement states, "[t]he defendant acknowledges
that under certain circumstances he is entitled to challenge
his conviction and sentence. With the exception of habeas
claims asserting ineffective assistance of counsel, the basis
for which the defendant neither knew, nor could have known,
at the time this plea agreement was entered into, defendant
agrees not to appeal or collaterally attack in any
proceeding, including but not limited to a motion under 28
U.S.C. §2255 and/or §2241, the conviction or
sentence imposed by the Court if that sentence does not
exceed 120 months of imprisonment." Gonzalez,
[Dkt. 206 at 5]. He also signed a petition acknowledging his
understanding of the terms of the Plea Agreement.
Gonzalez, [Dkt. 205 (Petition to Enter Plea of
Guilty)]. Finally, this Court routinely advises each
defendant at sentencing of their right to appeal, the manner
of filing an appeal, and of the right to be represented by
counsel should they choose to pursue an appeal, as well as
reminding the defendant of the terms of any appeal waiver in
the plea agreement. Thus, Petitioner was repeatedly advised
of and acknowledged understanding his right to appeal, his
waiver of that right and his right to file and the
permissible bases for filing a habeas petition.
January 20, 2016, this Court sentenced Mr. Gonzalez to the
statutory mandatory minimum of 120 months in prison, to be
followed by a 4 year term of supervised release.
Gonzalez, [Dkt. 355 (Judgment)]. The final judgment
was entered on January 29, 2016. Id. Mr. Gonzalez
did not pursue a direct appeal of the judgment. The time to
file a direct appeal expired 14 days after the entry of
judgment, February 14, 2016. See Fed. R. App. P.
Gonzalez executed his § 2255 motion on June 13, 2017 and
it was filed with the Court on June 19, 2017. [Dkt. 1 (§
2255 Motion)]. His initial § 2255 motion was followed by
a second motion with two addenda, which the Court understands
to actually be the memorandum of law in support of his motion
which he cited to in his initial motion, see [Dkt.
3], and later a reply to the Government's response to the
order to show cause, see [Dkt. 9-1]. The Court has
reviewed and taken into account Petitioner's arguments in
each of these filings. The Court has also taken into account
Petitioner's pro se status and construed his arguments
liberally accordingly. See Cruz v. Gomez, 202 F.3d
593, 597 (2d Cir. 2000).
Gonzalez's motion is based on a claim of ineffective
assistance of counsel on three grounds. First, Mr. Gonzalez
argues that his attorney improperly failed to object to the
insufficiency of the indictment, suggesting that the
Government failed to allege, and/or failed to prove, that Mr.
Gonzalez knew he possessed a controlled substance. [Dkt. 1 at
5]. Second, Mr. Gonzalez argues that his counsel was
ineffective for failing to object to the two level
enhancement to his offense level under U.S.S.G.
§2D1.1(b)(1) for possession of a firearm during the
course of narcotics trafficking. [Dkt. 1 at 6]. And third,
Mr. Gonzalez argues that his counsel was ineffective for
failing to object to the three level enhancement under
U.S.S.G. §3B1.1(b) for his role as manager or supervisor
of an offense involving five or more persons. Id. at
Respondent argues that Mr. Gonzalez's motion fails
because it is untimely-he filed it more than one year after
the judgment became final and there is no basis for equitable
tolling of the statute of limitations-and because his claims
are procedurally defaulted due to his failure to pursue them
on direct appeal. [Dkt. 5 (Resp. to Order to Show Cause) at
2-4]. In addition, Respondent argues that, even if counsel
was ineffective for failing to object to the sentencing
enhancements, Mr. Gonzalez was not prejudiced by those
enhancements because he received the minimum sentence
required by statute-120 months. Id. at 4. The
sentence imposed represented a downward departure and
variance below the applicable recommended Guideline range
calculated by the Court applying the challenged enhancements.
Consequently, the challenged enhancements did not affect
2255 enables a prisoner in federal custody to petition a
federal court to vacate, set aside, or correct the sentence.
28 U.S.C. § 2255(a). Section 2255 imposes a one year
period of limitation, which runs from the latest of
“(1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment to making
a motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (3) the date on which the right asserted
was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through exercise
of due diligence.” Id. at § 2255(f).
under Section 2255 is generally available “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, 590 (2d Cir. 1996) (internal
quotation marks and citation omitted). Section 2255 provides
that a district court should grant a hearing “[u]nless
the motion ...