Hancock v. United States

          RULING AND ORDER ON PENDING MOTIONS

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         On 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).^[1] 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. Id.

         On 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.

         On 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”).

         Three 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, ^[2] and (3) another motion to vacate, set aside, or correct Mr. Hancock's sentence (the “Second Amended Habeas Petition”), ECF No. 43-1.

         For the 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         On 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.

         On 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.^[3]

         On 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.

         As to 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 “Yes.” Id.

         Based 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.

         On 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.

         Judge 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 1^st 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.

         Judge 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.

         B. Procedural Background

         On 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.”].

         On May 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.

         Mr. 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.

         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.

         On 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.

         On May 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.

         On 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. at 9.

         On 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.

         On 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.

         On December 19, 2018, the Court held a hearing on all pending motions. Minute Entry, ECF No. 46.

         II. STANDARD OF REVIEW

         A 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).

         Courts 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'[.]”).

         The bar 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 ...