Hanks v. United States

          RULING RE: AMENDED MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DOC. NO. 18)

          JANET C. HALL UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner 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.

         For the reasons set forth below, Hanks's Amended Motion to Vacate (Doc. No. 18) is denied.

         II. BACKGROUND

         On 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. 14).

         On 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).

         On 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).

         On May 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.

         On 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).

         On July 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.

         III. FINDINGS OF FACT

         The 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' imprisonment.

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.

         Between 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.

         In 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.

         On the 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 8/21/2014.

         Hanks's 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 ...