United States District Court, D. Connecticut
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.
Ronell Hanks (“Hanks”) moves to vacate, set
aside, or correct his sentence pursuant to section 2255 of
title 28 of the United States Code. See generally
Amended Motion to Vacate (“Am. Mot. to Vacate”)
(Doc. No. 18). In his Amended Petition, Hanks collaterally
attacks his conviction on three grounds, all of which concern
Hanks's decision to plead guilty to a lesser-included
count of conspiracy to distribute heroin and cocaine. See
generally Memorandum in Support of Amended Motion to
Vacate (“Hanks's Mem.”) (Doc. No. 18-1).
First, Hanks contends that his trial counsel, Attorney Robert
Golger (“Attorney Golger”), provided ineffective
assistance of counsel during the plea negotiations by failing
to correctly advise Hanks of his eligibility for a sentencing
enhancement. See id. at 29-41. Second, he argues
that his guilty plea was not voluntarily, knowingly, and
intelligently made. See id. at 43-45. Third, he
claims that his waiver of appellate and collateral attack
rights is unenforceable for lack of consideration. See
id. at 41-42.
reasons set forth below, Hanks's Amended Motion to Vacate
(Doc. No. 18) is denied.
December 18, 2013, a federal grand jury returned an
indictment charging Hanks with four counts, namely: (1)
conspiracy to distribute more than five kilograms of cocaine
and one kilogram of heroin, and other narcotics, in violation
of sections 841(a)(1), 841(b)(1)(A)-(C), and 846 of title 21
of the United States Code; (2) possession with intent to
distribute and distribution of narcotics, in violation of
sections 841(a)(1) and 841(b)(1)(C) of title 21 of the United
States Code; (3) possession of a firearm and ammunition by a
convicted felon, in violation of sections 922(g)(1) and
924(a)(2) of title 18 of the United States Code; and (4)
possession of a stolen firearm, in violation of sections
922(j) and 924(a)(2) of title 18 of the United States Code.
See U.S. v. Hanks, No. 3:13-CR-229 (JCH)
(“Hanks Criminal Docket”), Indictment (Doc. No.
January 6, 2014, Attorney Golger appeared on behalf of Hanks.
See Hanks Criminal Docket, Attorney Appearance (Doc.
No. 22). On August 21, 2014, Hanks pled guilty to a
lesser-included count of conspiracy to distribute heroin and
cocaine. See Hanks Criminal Docket, Plea Agreement
(Doc. No. 277).
February 26, 2015, this court sentenced Hanks to 204
months' imprisonment and five years of supervised
release. See Hanks Criminal Docket, Judgment (Doc.
No. 528). Hanks appealed his conviction and sentence, and the
Second Circuit denied his appeal on May 16, 2016, on the
basis that he had waived his appellate rights in his plea
agreement. See Hanks Criminal Docket, Mandate of
USCA (Doc. No. 679).
8, 2017, Hanks timely initiated the instant proceedings as a
pro se litigant under section 2255 of title 28 of
the United States Code. See Motion to Vacate
(“Mot. to Vacate”) (Doc. No. 1). The respondent,
the United States of America (“the government”),
opposed the Motion to Vacate on June 13, 2017. See
United States' Response to Defendant's Motion
Pursuant to 28 U.S.C. § 2255 (“Gov't's
Resp.”) (Doc. No. 4). Subsequently, this court
appointed counsel to represent Hanks on July 26, 2017. Notice
of Appearance (Doc. No. 10). On December 19, 2017,
Hanks's counsel filed an Amended Motion to Vacate (Doc.
No. 18), which is currently pending before this court.
March 6, 2018, Hanks filed a Motion for Entry of Default
(Doc. No. 25) on the basis that the government had not filed
a response to Hanks's Amended Motion to Vacate. In its
Response to Hanks's Motion for Entry of Default, the
government noted that it had timely responded to the Motion
to Vacate and that the Amended Motion to Vacate did not
address the arguments the government had set forth in its
Response or make additional points that warranted a further
response. See United States' Response to
Defendant's Motion for Default Entry 55(a)
(“Gov't's Resp. to 55(a) Mot.”) (Doc. No.
26). Hanks then submitted a Reply to the government's
Response to his pro se Petition. Reply Memorandum of
Ronell Hanks (“Reply”) (Doc. No. 27-1).
23, 2018, the court ruled that there were outstanding issues
of fact concerning whether Attorney Golger provided Hanks
with ineffective assistance of counsel, including whether
Attorney Golger investigated Hanks's eligibility for a
sentencing enhancement, whether he communicated to Hanks that
the application of a sentencing enhancement was a certainty,
and whether there is a reasonable probability that, but for
Attorney Golger's advice regarding the sentencing
enhancement, Hanks would not have pled guilty and would have
insisted on going to trial. See Ruling on Amended
Motion to Vacate (“First Ruling on Am. Mot. to
Vacate”) (Doc. No. 29) at 2. The court therefore
conducted an evidentiary hearing and held argument on October
2, 2018. Both Attorney Golger and Hanks testified at the
hearing. In addition, the government and Hanks each
introduced a number of exhibits. See generally
Marked Exhibit List (Doc. No. 36). After the hearing, both
parties submitted additional briefing and exhibits to
supplement the record.
FINDINGS OF FACT
government and Hanks engaged in plea negotiations during the
Spring and Summer of 2014. On April 2, the government emailed
Attorney Golger a draft plea agreement (“the April
Agreement”), which proposed that Hanks plead guilty to
Count One of the Indictment for conspiracy to distribute and
to possess with intent to distribute at least one kilogram of
heroin and at least five kilograms of cocaine. See
Hanks's Exhibit 1, Plea Agreement Dated 4/2/14
(“April Agreement”), at 1. The charge carried a
mandatory minimum sentence of ten years' imprisonment and
a maximum sentence of life in prison. Id. at 2.
According to the April Agreement's calculations, Hanks
faced a sentencing range of 292 to 365 months of imprisonment
under the Sentencing Guidelines. Id. at 7. This
sentencing range was based, in part, on (1) the assumption
that the United States Sentencing Commission would adopt
certain amendments to the Sentencing Guidelines on November
1, 2014, that would reduce Hanks's base offense level by
two points; and (2) the stipulation that Hanks's offense
conduct involved five kilograms of heroin and five kilograms
of cocaine. Id. at 6-7. The April Agreement also
contained, in bolded text, the following provision:
The parties acknowledge that in light of the defendant's
prior conviction for a felony drug offense, the defendant
could be eligible for a sentencing enhancement under 21
U.S.C. §§ 841(b)(1)(B)(iii) and 851, which would
expose him to a mandatory minimum sentence of twenty
years' imprisonment. In light of this plea agreement, the
Government agrees that it will not file the information
required by § 851, and therefore the defendant will not
be exposed to a mandatory term of twenty years'
Id. at 7. The “prior conviction”
referenced in this provision is Hanks's 2007 conviction
in Connecticut state court, where he pled guilty to
possession of narcotics with intent to sell under section
21a-277(a) of the Connecticut General Statutes.
April 2 and August 21, the date on which Hanks pled guilty,
the government sent Hanks six additional plea proposals, each
of which contained language noting that “[Hanks] could
be eligible for a sentencing enhancement” in light of
his prior conviction for a felony drug offense. During this
time period, the government also made a reverse proffer in
which it presented the evidence that it had gathered for its
case against Hanks to both Attorney Golger and Hanks.
response to Hanks's filing of a Motion to Suppress, the
court scheduled an evidentiary hearing for August 19, 2014.
On August 7, however, Attorney Golger notified the court that
Hanks intended to plead guilty. The court therefore scheduled
a change of plea hearing for August 18. Attorney Golger made
this request for a change of plea hearing based on his
conversations with Hanks's mother, who had informed him
that Hanks wanted to plead guilty. Hanks, however, claims
that he never told his mother that he intended to plead
guilty, and that he did not know that a change of plea
hearing had been scheduled until he was brought to court on
August 18. On that day, the government presented Hanks with
two revised plea agreements, both of which Hanks rejected. In
light of these developments, the court rescheduled
Hanks's suppression hearing for August 21, 2014.
day of the suppression hearing, Attorney Golger met with
Hanks at the courthouse and updated him about Attorney
Golger's ongoing discussions with the government.
Specifically, the government had represented to Attorney
Golger that, if the suppression hearing went forward, the
government would withdraw its plea agreement and take steps
towards pursuing a section 851 sentencing enhancement. The
parties dispute the precise language that Attorney Golger
used when discussing the risk posed by the government's
threat of a sentencing enhancement. According to Hanks's
testimony, Attorney Golger told him that the government
would file a section 851 information, which, in
turn, would expose Hanks to a 20-year mandatory
minimum sentence upon a conviction on Count One of the
Indictment. On the other hand, Attorney Golger testified that
he told Hanks that the government's filing of a section
851 information could, not would, expose
him to a sentencing enhancement. There is no dispute,
however, that Attorney Golger conveyed to Hanks that, if he
proceeded with the suppression hearing, he would lose the
government's plea offer and risk a sentencing
enhancement. Nor is there any dispute that, at the end of
this meeting, Hanks remained determined to move forward with
the suppression hearing. Indeed, less than an hour before the
start of the suppression hearing, Attorney Golger informed
the government by email that he had met with Hanks for half
an hour and that “Hanks appears steadfast in his desire
for a trial.” Government's Exhibit C, Email from
mother and the mother of Hanks's child were present when
Hanks was brought to the courtroom for the suppression
hearing. Both of them urged Hanks to follow Attorney
Golger's advice and to accept the plea deal. Shortly
thereafter, Hanks informed the court that he intended to
plead guilty pursuant to the ...