Sullivan v. United States
| Decision Date | 26 February 2018 |
| Docket Number | 14-CV-1777(JS) |
| Parties | BRIAN SULLIVAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Petitioner:
Brian Sullivan, prose
19 Palm Street
Lindenhurst, NY 11757
For Respondent:
Carrie Nicole Capwell, Esq.
United States Attorney's Office
Eastern District of New York
560 Federal Plaza
Central Islip, NY 11722
Saritha Komatireddy, Esq.
United States Attorney's Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
Brian Sullivan ("Petitioner") petitions this Court pro se to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the instant Petition is DENIED in its entirety.
On July 7, 2012, Petitioner plead guilty in the United States District Court of the Eastern District of New York to a lesser-included offense of Count One of a Superseding Indictment, charging Conspiracy to Distribute Marijuana in violation of 21 U.S.C. § 846. (See J., Def.'s Resp. Ex. F, Docket Entry 12-2 at 33-39, at 34.)1
Petitioner's plea proceedings took place before the Honorable A. Kathleen Tomlinson, United States Magistrate Judge, during which Petitioner was asked a series of standard plea colloquy questions. After swearing him in, Judge Tomlinson ensured that Petitioner was competent to enter the guilty plea and that he understood the proceedings. (See Plea Tr., Def.'s Resp. Ex. C, Docket Entry 12-1 at 21-42, 4:17-6:9.) Further, Judge Tomlinson explained the rights Petitioner was forfeiting by choosing to enter a guilty plea, stating in pertinent part:
(Plea Tr. 6:20-8:21.) Petitioner confirmed that he entered into a Plea Agreement with the Government and the waiver provisionscontained in the Plea Agreement were placed on the record. (Plea Tr. 8:22-9:8.) The Government stated:
The defendant has agreed pursuant to the [P]lea [A]greement to not appeal or challenge in any way his conviction or sentence as long as the sentence imposed by the Court is 33 months or less.
(Plea Tr. 9:13-9:17.) Petitioner indicated that he understood the effect of his appeal waiver. (Plea Tr. 10:14-10:25.) Judge Tomlinson then asked the Government to inform Petitioner of the elements of the crime he was pleading guilty to and the Government explained:
First, on or about and between March 1, 2010 and November 16, 2010; the second element, within the Eastern District of New York; third element, that the defendant acted knowingly and intentionally; fourth, that he agreed or conspired with others; fifth, to distribute and to possess with intent to distribute marijuana.
(Plea Tr. 11:6-11:12.) Judge Tomlinson also explained the range of possible sentences and discussed the upcoming sentencing process. (Plea Tr. 12:2-15:9.) Petitioner confirmed that he was satisfied with the legal services provided by counsel. (Plea Tr. 15:16-15:18.) Further, Judge Tomlinson confirmed that Petitioner's guilty plea was voluntary and not a product of any threats or coercion. (Plea Tr. 15:23-16:12.) Judge Tomlinson then turned to the underlying facts of the crime, stating:
(Plea Tr. 16:13-17:14.) Further, Judge Tomlinson instructed the Government to place an offer of proof on the record, to which the Government responded:
The evidence in this case includes it was a wiretap investigation over many months, so it would include recordings of telephone calls, as well as text messages that were captured involving this defendant and his co-defendants in connection with the distribution of marijuana. It would also include surveillance of meetings that took place in connection with this conspiracy. Also, marijuana was seized during this investigation and it was tested by the DEA and confirmed that it was, in fact, marijuana. That's the large basis of the evidence.
(Plea Tr. 18:23-19:8.) Satisfied with the allocution, Judge Tomlinson stated:
(Plea Tr. 19:10-19:19.)
Petitioner returned to this Court for his sentencing proceedings on May 11, 2012. Prior to imposing sentence, the Court stated that it considered the Plea Agreement, the plea proceeding before Judge Tomlinson, the presentence investigation report generated by the Probation Office, as well as letters sent on Petitioner's behalf. The Court then confirmed that neither defense counsel, nor the Government, had objectionsto the contents of the presentence investigation report. (Sentencing Tr. 6:7-6:10.) Following argument from counsel, the Court imposed a sentence of twenty seven (27) months of imprisonment followed by four years of supervised release. (Sentencing Tr. 26:21-26:24.)
Notwithstanding the appeal waiver, Petitioner appealed his conviction and sentence to the Second Circuit Court of Appeals. On August 12, 2013, the Second Circuit affirmed Petitioner's conviction and sentence. (See Mandate United States v. Sullivan, No. 12-2221 (2d Cir. Aug. 12, 2013), Def.'s Ex. E, Docket Entry 12-2 at 31-32.)
On March 17, 2014, Petitioner filed the instant Petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255, raising a number of claims, including ineffective assistance of counsel. (See Pet., Docket Entry 1; Pet'r's Br., Docket Entry 2.) On June 2, 2014, John F. Carman, Esq., Petitioner's assigned counsel during the underlying proceedings, filed an affidavit in which he denied Petitioner's allegations regarding his representation. (See Carman Aff., Docket Entry 10, at 1-4.) The Government filed a response on June 30, 2014, arguing that Petitioner's claims are without merit and barred by the appeal waiver. (Resp.'s Br., Docket Entry 12.) Shortly thereafter, Petitioner submitted a reply in further support of the Petition. (Pet'r's Reply Br., Docket Entry 13.) Additionally, Petitionerfiled a motion for summary judgment, arguing that because the Government failed to adequately respond to the grounds for habeas relief, judgment should be issued in his favor (Mot. for Summ. J., Docket Entry 14.)
The Court will first address the applicable legal standard before turning to the merits of the Petition.
To warrant habeas corpus relief under § 2255 a petitioner must show "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack". 28 U.S.C. § 2255(a). In other words, a collateral attack is available "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 a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)). When determining whether to grant habeas relief, "the scope of review on a § 2255 motion should be 'narrowly limited' in order to preserve the finality of criminal sentences and to effect the efficient allocation of judicial resources."Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (citations omitted). When seeking habeas relief, the petitioner has the burden of proving his claims by a preponderance of the evidence. Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011).
Concerning evidentiary hearings, § 2255 states that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). However, "[a]iry generalities, conclusory assertions and hearsay statements will not suffice [to warrant an evidentiary hearing] because none of these would be admissible evidence at a hearing." United States v. Aiello, 814 F.2d 109, 113-14 (2d Cir. 1986). As such, "[t]he petitioner must...
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