United States District Court, D. Connecticut
RULING AND ORDER ON PENDING MOTIONS
A. BOLDEN, UNITED STATES DISTRICT JUDGE
September 6, 2012, Vince Hancock (“Mr. Hancock”
or “Petitioner”) pled guilty to possession with
intent to distribute and distribution of cocaine base and
heroin in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). Petition Pursuant to 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence (“First
Habeas Petition”), ECF No. 1; Ex. 1 [Judgment, Case No.
12-cr-15 VLB] at 1, ECF No. 1. He was sentenced to 151 months
imprisonment followed by 36 months supervised release.
September 13, 2012, Mr. Hancock filed an appeal of his
sentence with the Second Circuit. First Habeas Petition at 2;
Gov't Resp. to Hancock's Mot., Ex. D, ECF No. 7-4;
U.S. v. Hancock, No. 12-3638 (2d Cir. 2013), Dkt. 1.
On August 23, 2013, the Second Circuit dismissed the appeal
as barred by the waiver of appellate rights contained in Mr.
Hancock's plea agreement with the government. U.S. v.
Hancock, No. 12-3638, Dkt. 68, ECF No. 7-7.
November 24, 2014, Mr. Hancock, pro se, filed a
petition in the District of Connecticut to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255. First
Habeas Petition. Subsequently, and with the assistance of
appointed counsel, Mr. Hancock twice moved to amend his
petition. Mot. to Vacate Nunc Pro Tunc, ECF No. 23;
Mot. to Amend/Correct Mot. to Vacate Nunc Pro Tunc,
ECF No. 43; Pet. Second Am. Mot. Pursuant to 18 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence (“Second
Amended Habeas Petition”).
motions are now pending: (1) a motion to vacate, set aside,
or correct Mr. Hancock's sentence (the “First
Habeas Petition”), ECF No. 1; (2) a motion to amend or
correct the First Habeas Petition nunc pro tunc, ECF
No. 43,  and (3) another motion to vacate, set
aside, or correct Mr. Hancock's sentence (the
“Second Amended Habeas Petition”), ECF No. 43-1.
reasons set forth below, the Court now
DENIES Mr. Hancock's motion to vacate,
set aside, or correct his sentence, ECF No. 1;
DENIES Mr. Hancock's motion to amend or
correct his motion to vacate, set aside, or correct his
sentence, ECF No. 43, and DENIES Mr.
Hancock's second motion to vacate, set aside, or correct
his sentence, ECF No. 43-1.
FACTUAL AND PROCEDURAL BACKGROUND
January 18, 2012, a grand jury indicted Mr. Hancock on nine
separate criminal charges: (1) possession with intent to
distribute and distribution of cocaine base and heroin [June
15, 2011 count], (2) possession with intent to distribute and
distribution of cocaine base and heroin [June 27, 2011
count], (3) possession with intent to distribute and
distribution of cocaine base and heroin [July 21, 2011
count], (4) possession with intent to distribute and
distribution of cocaine base and heroin [Aug. 3, 2011 count],
(5) possession with intent to distribute and distribution of
heroin [Sept. 19, 2011 count], (6) possession with intent to
distribute and distribution of heroin [Sept. 20, 2011 count],
(7) unlawful possession of a firearm by a convicted felon,
(8) possession with intent to distribute cocaine base,
cocaine, and heroin, and (9) possession of a firearm in
furtherance of a drug trafficking crime. U.S. v. Vince
Hancock, Grand J. N-11-1, Indictment (Jan. 18, 2012),
ECF No. 7-1.
February 26, 2012, the United States of America (the
“Government”) offered Mr. Hancock a plea
agreement: dismissal of eight of the nine charges against Mr.
Hancock, including possession of a firearm under 18 U.S.C.
924(c)(1)(A), and no second offender notice under 21 U.S.C.
§ 851, if Mr. Hancock pled guilty to Count Four of the
Indictment (i.e., Possession with intent to distribute and
distribution of cocaine base and heroin [Aug. 3, 2011
count]). U.S. v. Vince Hancock, Plea Agreement (Feb.
26, 2012) (“Plea Agree.”), ECF No. 7-2. The plea
agreement required Mr. Hancock to waive most of his appeal
and collateral attack rights:
The defendant acknowledges that under certain circumstances
he is entitled to challenge his conviction and sentence. The
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 151 months of incarceration and a life term of
supervised release . . . . The Government and the defendant
agree not to appeal or collaterally attack the Court's
imposition of a sentence of imprisonment concurrently or
consecutively, in whole or in part, with any other sentence.
The defendant acknowledges that he is knowingly and
intelligently waiving these rights. Furthermore, the parties
agree that any challenge to the defendant's sentence that
is not foreclosed by this provision will be limited to that
portion of the sentencing calculation that is inconsistent
with (or not addressed by) this waiver.
Id. at 8.
March 14, 2012, Mr. Hancock appeared before Magistrate Judge
Thomas P. Smith. Transcript of Change of Plea Hearing
(“Plea Hearing Trans.”), ECF No. 7-9. The hearing
began at 1:28 p.m. and ended at 3:03 p.m. Id. at 3,
81. Mr. Hancock was represented by trial counsel.
Id. at 2. At the hearing, Judge Smith asked Mr.
Hancock if trial counsel had provided him with a copy of the
Indictment and Plea Agreement; Mr. Hancock answered
“Yes.” Id. at 12-13. Judge Smith asked
Mr. Hancock if he understood the indictment and plea
agreement; Mr. Hancock answered “Yes.”
Id. at 13. Judge Smith asked Mr. Hancock if he
understood that the Guidelines sentence for the charge he was
pleading guilty to, at his criminal history category, with a
career offender enhancement would be 151 to 188 months in
prison. Id. at 54. Mr. Hancock responded,
“Yes. Yes.” Id.
his appeal rights, Judge Smith asked Mr. Hancock “Do
you understand and agree, as stated in your Plea Agreement,
that you will not appeal or in any other way attack either
your conviction or your sentence imposed by the Court, if the
Court does not impose a prison sentence . . . . longer than
151 months, and if the Court imposes a lifetime period of
supervised release?” Id. at 57. Mr. Hancock
responded “Yes.” Id. Judge Smith asked
Mr. Hancock, “Sir, are you totally and completely
satisfied with the legal representation and advice you have
received?” Id. at 67. Mr. Hancock responded
upon Mr. Hancock's answers, Judge Smith found that he had
pled guilty “knowingly, voluntarily, intelligently . .
. with the effective assistance of legal counsel.”
Id. at 75-76. Mr. Hancock, his trial counsel, and
Assistant United States Attorney Marc H. Silverman signed the
plea agreement. Plea Agree. at 13.
September 4, 2012, Mr. Hancock appeared before Judge Vanessa
L. Bryant for Sentencing. Trans. of Sentencing Hearing
(“Sentencing Trans.”), ECF No. 7-10. Mr. Hancock
was represented by the same trial counsel. Id. at 2.
The Government sought a career offender enhancement to Mr.
Hancock's sentence but not a firearm enhancement (i.e.,
for the loaded Keltec P32 officers found in his closet).
Gov't Resp. to Hancock's Mot at 23-24.
Bryant conducted an independent calculation of Mr.
Hancock's sentence. Sentencing Trans. at 5. She also
concurred with Judge Smith, the Government, defense counsel,
and the Probation Office that the Sentencing Guidelines range
for Mr. Hancock's crime, with the career offender
enhancement, was 151 to 188 months. Id. at 7. Judge
Bryant then issued a finding on the appropriateness of the
career offender enhancement given Mr. Hancock's prior
offenses, which included a robbery in the first degree that
involved the death of a delivery man and a narcotics charge
similar to his present charge:
[Mr. Hancock] committed virtually the identical offense back
in 2007 . . . . an instance in which the deliveryman died,
where the Defendant had conspired with others to rob this
individual. The Defendant was not the triggerman, did not
have possession of the gun, but knew that a firearm would be
present . . . . There was a period of time after his service
of incarceration on that Robbery 1st conviction,
where the only offenses were more minor, but then in 2007 the
Defendant was convicted for his possession of narcotics . . .
with intent to distribute narcotics, as well as his
possession of a firearm. When a search warrant was executed
at his home, law enforcement recovered, I think it was
heroin, marijuana, and crack cocaine. It's virtually
identical to what happened four years later in this case,
when a search warrant was executed at his home following six
controlled purchases, and heroin, powder cocaine and crack
cocaine were located, along with a loaded firearm . . . . At
this point he qualifies as a career offender based on those
two offenses. This is what the career offender Guidelines is
meant for, this type of circumstances.
Id. at 9-10.
Bryant enumerated the sentencing factors set forth in 18
U.S.C. 3553, Id. at 22-26, applied them to Mr.
Hancock's case, Id., and then sentenced Mr.
Hancock at the bottom of the Sentencing Guidelines range, 151
months, followed by three years of supervised release.
Id. at 26. Following Judge Bryant's sentence,
the Government dismissed all remaining criminal charges,
consistent with the plea agreement. Id. at 59.
September 13, 2012, Mr. Hancock filed an appeal of his
sentence with the United States Court of Appeals for the
Second Circuit (“Second Circuit”). Gov't
Resp. to Hancock's Mot., Ex. D, ECF No. 7-4; U.S. v.
Hancock, No. 12-3638 (2d Cir. 2013), Dkt. 1. Different
counsel represented Mr. Hancock on appeal. Gov't Resp. to
Hancock's Mot., Ex. D, ECF No. 7-5 [“Brief and
Appendix for Appellant Vince Hancock.”].
1, 2013, Mr. Hancock's appellate counsel filed a
thirty-one page brief in support of his appeal. His appellate
counsel raised four arguments in support of a reduced
sentence, including (1) the sentencing judge should have more
fully considered Mr. Hancock's “extremely difficult
upbringing . . . ” and other personal challenges,
Id. at 17-21; (2) the sentencing judge should not
have imposed the career offender enhancement, though Mr.
Hancock's prior crimes satisfied the technical
requirements of U.S.S.G. § 4B.1 at the time of his
sentencing, Id. at 28; (3) because the sentencing
judge imposed the career offender enhancement, the Second
Circuit had “good reason to doubt that the district
court fully appreciated its authority to depart from
enhancements required by the career offender guidelines,
” Id. at 30; and (4) that Mr. Hancock might
not have fully understood the career offender stipulation of
his plea agreement or the lengthy sentence he might face,
Id. at 33.
Hancock's appellate counsel asked the Court to
“agree that, given the totality of the circumstances in
this case, the career offender designation on which the
district court relied to elevate Mr. Hancock's sentence
by an additional 67 months just does ‘not bear the
weight assigned,' U.S. v. Cavera, 550 F.3d at
191, when considered against the evidence that this defendant
is one with an entirely realistic prospect for
rehabilitation.” Id. at 34.
August 23, 2013, the Second Circuit dismissed the appeal as
barred by the waiver of appellate rights contained in Mr.
Hancock's plea agreement with the Government. U.S. v.
Hancock, No. 12-3638, Dkt. 68.
November 24, 2014, Mr. Hancock, pro se, filed a
petition in this Court to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. First Habeas Petition.
He asserted two claims in his petition: (1) ineffective
assistance of counsel at trial, and (2) “[c]hanges in
the case law of the United States Supreme Court . . .
.” First Habeas Petition at 6.
18, 2016, the Court granted Mr. Hancock's motion to
appoint counsel. Order. ECF No. 17. On September 6, 2016,
Magistrate Judge Garfinkel granted petitioner's motion to
amend the petition and ordered that the petition be filed
within forty-five days. Order. ECF No. 22. Mr. Hancock,
through appointed counsel, did not meet the deadline. Rather,
on January 6, 2017, Mr. Hancock filed an amended petition.
Mot. to Vacate Nunc Pro Tunc, ECF No. 23. On July 7,
2017, appointed counsel moved to withdraw. ECF No. 29. In
early 2018, new counsel was appointed. ECF Nos. 33-34.
August 31, 2018, with the assistance of this new counsel, Mr.
Hancock filed a motion to amend his amended petition, and
attached his proposed second amended petition as Exhibit A,
Second Amended Habeas Petition, ECF No. 43-1. Mr. Hancock
asserts two claims in the second amended petition: (1)
ineffective assistance of counsel for not contesting or
preserving the career offender issue for appeal, id.
at 5; and (2) an unconstitutional sentencing error due to the
imposition of the career offender enhancement, id.
September 13, 2018, the Government opposed Mr. Hancock's
motion to amend and his Second Amended Habeas Petition.
Gov't. Opp. to Def. Mot., ECF No. 44.
September 24, 2018, Mr. Hancock replied to the
Government's opposition memorandum. Pet. Reply Br. in
Supp. of Mot. for Leave to Amend, ECF No. 45.
December 19, 2018, the Court held a hearing on all pending
motions. Minute Entry, ECF No. 46.
STANDARD OF REVIEW
prisoner may challenge the legality of his or her sentence
under 28 U.S.C. § 2255 if the sentence was: (1) imposed
in violation of the Constitution or laws of the United
States; (2) imposed by a court that lacked jurisdiction to
sentence the prisoner; (3) in excess of the maximum detention
authorized by law; or (4) otherwise subject to collateral
attack. 28 U.S.C. § 2255(a).
shall grant petitioners leave to amend their section 2255
petitions when “justice so requires.”
Fed.R.Civ.P. 15(a)(2); Littlejohn v. Artuz, 271 F.3d
360, 363 (2d Cir. 2001) (“Given that motions to amend
are not successive habeas petitions, the standard for
granting or denying a motion to amend is thus governed by
Federal Rule of Civil Procedure 15(a). The application of
Rule 15(a) is supported by 28 U.S.C. § 2242, which
states that a petition for habeas corpus ‘may be
amended or supplemented as provided in the rules of procedure
applicable to civil actions'[.]”).
for a section 2255 petition is high, and “even
constitutional errors will not be redressed through a section
2255 petition unless they have had a ‘substantial and
injurious effect' that results in ‘actual
prejudice' to the petitioner.” Wilson v.
U.S., No. 3:16-cv-1791 SRU, 2017 WL 3044652, at *1 (D.
Conn. July 18, 2017), quoting Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (internal citations omitted); citing