Tellado v. United States

• Decision Date: 13 July 2011
• Docket Number: No. 3:09cv1572 (MRK).,3:09cv1572 (MRK).
• Citation: 799 F.Supp.2d 156
• Parties: Shawn TELLADO, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Connecticut

799 F.Supp.2d 156

Shawn TELLADO, Petitioner,

v.UNITED STATES of America, Respondent.

No. 3:09cv1572 (MRK).

United States District Court, D. Connecticut.

July 13, 2011.

Terence S. Ward, Federal Public Defender's Office, Hartford, CT, for Petitioner.

Geoffrey M. Stone, S. Dave Vatti, U.S. Attorney's Office, Hartford, CT, John B. Hughes, Peter D. Markle, Robert M. Spector, U.S. Attorney's Office, New Haven, CT, for Respondent.

MEMORANDUM OF DECISION

MARK R. KRAVITZ, District Judge.

This is a difficult case because it places the societal interest in finality of judgments against the possibility of a shorter sentence for the Petitioner, Shawn Tellado. In the end and for the reasons discussed below, the Court believes that the societal interest in finality overcomes Mr. Tellado's personal interest in a shorter sentence.

Pending before the Court is Mr. Tellado's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 [doc. # 1]. On September 10, 2007, Mr. Tellado was sentenced as a career offender for conspiracy to possess with intent to distribute, and to distribute, 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Mr. Tellado's sentence was calculated according to the United States Sentencing Commission Guidelines (“the Guidelines”) in effect on November 1, 2006 based on an adjusted offense level of 31 and criminal history category of VI, as applied to a career offender under § 4B1.1 of the Guidelines. The sentence Mr. Tellado received—188 months imprisonment followed by five years of supervised release—was at the low end of that Guidelines range.

Mr. Tellado was classified as a career offender based on his plea agreement, in which he agreed that he was a career offender under § 4B1.1 of the Guidelines, and on the conclusion in the Presentence Report (“PSR”) that Mr. Tellado had two prior convictions for controlled substance offenses—specifically two convictions for sale of narcotics under § 21a–277(a) of the Connecticut General Statutes. Each of Mr. Tellado's two prior convictions was the result of a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). An Alford plea allows a defendant to plead guilty without confirming the factual basis for his plea. See id. at 37, 91 S.Ct. 160. Mr. Tellado did not appeal his sentence, and it became final on September 24, 2007. See Fed. R.App. P. 4(b)(1)(A); Moshier v. United States, 402 F.3d 116, 118 (2d Cir.2005) (per curiam) (“We ... hold that, for purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires.”).

On September 18, 2008, the Second Circuit issued its decision in United States v. Savage, 542 F.3d 959 (2d Cir.2008). In Savage, the Second Circuit held that the appellant's previous conviction under Connecticut General Statutes § 21a–277(b)—entered pursuant to an Alford plea—was not a conviction for a “controlled substance offense” as that term is defined in § 4131.2(b) of the Guidelines. See id. at 960. The Guidelines definition of a “controlled substance offense” provides, in pertinent part:

The term “controlled substance offense” means an offense under ... state law ... that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute or dispense.

U.S.S.G. § 4131.2(b). Application Note 1 to § 4131.2 further provides that a controlled substance offense “include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” Id. cmt. n. 1. As the Savage court explained, “a mere offer to sell, absent possession, does not fit within the Guidelines' definition of a controlled substance.” Savage, 542 F.3d at 965 (quotation marks and citation omitted). “Because a ‘sale’ under Connecticut law includes a mere offer to sell drugs,” the Second Circuit concluded, a prior conviction that resulted from a guilty plea to “sale” of a controlled substance under Connecticut General Statutes § 21a–277(b) does not qualify as a conviction for a controlled substance offense under the Guidelines unless the sentencing court determines that the defendant necessarily pled guilty to exchanging drugs for money. Id. at 967.¹

For the purposes of determining whether a defendant's plea necessarily rested on the elements of a “controlled substance offense,” as that predicate offense is defined in the Guidelines, a sentencing court is limited to “the terms of the charging document, the terms of the plea agreement or transcript of colloquy between judge and defendant [in the prior case] in which the factual basis for the plea was confirmed by the defendant, or some other comparable judicial record of [that] information.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see Savage, 542 F.3d at 966. Because Mr. Tellado entered Alford pleas to charges that were not limited to actual sale of narcotics, the Court did not have a basis to find that his prior convictions constituted controlled substance offenses under the Guidelines.

Mr. Tellado filed the pending § 2255 petition on September 25, 2009. In light of Savage, Mr. Tellado's classification as a career offender and his consequent sentence were incorrect. Because Mr. Tellado had 17 criminal history points, he would have been in Criminal History Category VI even if he had not been classified as a career offender. See Sentencing Tr. at 8:13–15. But the applicable base offense level would have been 26 rather than 34, and Mr. Tellado's adjusted offense level would have been 23 rather than 31. See Plea Agreement, Ex. 1 to Supplemental Mem. in Opp'n [doc. # 18–1] at 3. Thus, if Mr. Tellado's Guidelines sentence were recalculated in light of Savage, he would face a total sentence of between 92 and 115 months imprisonment, followed by three years of supervised release. The Government acknowledges that “ Savage is not barred from retroactive application on habeas review” by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny. Supplemental Mem. in Opp'n [doc. # 18] at 9. The Government thus concedes “the potential retroactivity of Savage.” Id. at 11.

However, even if Savage is potentially retroactive, in order to reach the question of what Mr. Tellado's sentence would be if it were recalculated in light of Savage, the Court would have to do serious violence to the finality standards that govern § 2255 petitions. The Government has offered two broad reasons why the Court should not re-sentence Mr. Tellado. First, Mr. Tellado's petition was simply filed too late—outside the one-year period of limitation imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2255(f). Second, as part of his plea agreement, Mr. Tellado waived his right to appeal or collaterally attack any sentence that did not exceed 188 months imprisonment. The Court finds that Mr. Tellado's petition should be denied on either of these grounds, for reasons that follow.²

I.

The Second Circuit has stated that “the scope of review on a § 2255 motion should be ‘narrowly limited’ in order to preserve the finality of criminal sentences and effect the efficient allocation of judicial resources.” Graziano v. United States, 83 F.3d 587, 590 (2d Cir.1996) (citations omitted). In this case, the central AEDPA principle of finality trumps error in the career offender calculation. Cf. Jenkins v. Greene, 630 F.3d 298, 305 (2d Cir.2010) (acknowledging that the court's holding “prevent[ed] [the petitioner] from challenging an extremely severe sentence that may well have been the result of an ineffective attorney,” and explaining that such an outcome “is the consequence of Congress's decision to impose a limitations period on petitions for habeas corpus”).

“[AEDPA] had among its goals to prevent undue delays in federal habeas review.” Wims v. United States, 225 F.3d 186, 189 (2d Cir.2000) (quotation marks and citation omitted). Under AEDPA, “[a] [one]-year period of limitation shall apply to a motion under [§ 2255].” 28 U.S.C. § 2255(f). Ordinarily, the period of limitation begins to run on “the date on which the judgment of conviction becomes final.” Id. § 2255(f)(1). In special circumstances, AEDPA provides for the limitations period to run from a later date. See id. § 2255(f)(2)-(4). Because Mr. Tellado's conviction became final on September 24, 2007, the Government argues that AEDPA's one-year limitations period expired on September 24, 2008. Mr. Tellado's § 2255 petition was filed over two years after his conviction became final, on September 25, 2009. Mr. Tellado argues that the Court should deem his petition timely either on the basis that his petition rests on facts that became available to Mr. Tellado only after his conviction became final—one of the special situations recognized by AEDPA, see id. § 2255(f)(4)—or by applying a principle of equitable tolling. However, neither AEDPA's provision for petitions based on newly discovered facts nor a principle of equitable tolling applies to Mr. Tellado's situation.

A.

Although AEDPA's one-year limitations period usually runs from the date on which a conviction becomes final, if a § 2255 petition is based on facts discovered after the date on which the conviction became final, then the one-year limitations period begins to run from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4) Mr. Tellado argues that the Second Circuit's decision in Savage created a new “fact” that Mr. Tellado could not have reasonably discovered until “at least several months after September 18, 2008.” Movant's Mem. Re: Timeliness and Waiver [doc. # 19] at 6.

Contrary to Mr. Tellado's arguments, the...