JANET BOND ARTERTON, District Judge.
On August 16, 2011 Petitioner Stefan Winston pled guilty to one count of conspiracy to distribute one kilogram or more of heroin and twenty-eight grams or more of cocaine base in violation of 21 U.S.C. § 846 and 841(a)(1) and 841(b)(1)(A). On January 28, 2013 he was sentenced to 165 months' imprisonment followed by five years of supervised release. Mr. Winston unsuccessfully appealed his conviction and sentence to the Second Circuit.
Mr. Winston now moves [Doc. # 1] to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 claiming that his defense counsel was ineffective in two respects: he failed to address "disparities in the sentencing procedure resulting in additional jail time" for Mr. Winston in relation to his co-defendants; and he neglected to inform Mr. Winston of an earlier, more favorable plea offer from the Government, which he would have accepted had he known of it. (Pet'r. Mem. Supp. [Doc. # 3] at 2.) The Court rejected [Doc. # 12] his claim that his defense counsel failed to meaningfully address sentencing disparities between him and his co-defendants, but ordered an evidentiary hearing on the second claim that Petitioner's counsel failed to communicate to him the terms of an earlier, more favorable plea offer than the one under which he pled guilty. That evidentiary hearing was held September 26, 2016. For the reasons discussed below, Mr. Winston's motion is granted.
Petitioner claims that his attorney never conveyed to him the Government's first plea offer which would have subjected him to a sixty-month mandatory minimum sentence on a charge of conspiracy to distribute and to possess with intent to distribute mixtures and substances containing twenty-eight grams or more of cocaine base. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Instead, he pled guilty to a charge of conspiracy to distribute and possess with intent to distribute both the aforementioned cocaine and mixtures and substances containing one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B) and 846, which carried a 120-month mandatory minimum sentence.
Prisoners in federal custody may seek to have their sentences vacated, set aside, or corrected if their "sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
A claim of constitutionally ineffective assistance of counsel at the plea negotiation stage is governed by Missouri v. Frye, which recognizes that the two-pronged standard articulated in Strickland v. Washington, 466 U.S. 668 (1984) applies. See Frye, 132 S.Ct. 1399, 1405 (2012). Under this standard, a petitioner must prove that: (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) "any deficiencies in counsel's performance [were] prejudicial to the defense." Strickland, 466 U.S. at 688, 692. Because under the Sixth Amendment, defense counsel has an affirmative duty "to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both," the failure to do so may constitute ineffective assistance of counsel. Frye, 132 S. Ct. at 1405. In assessing such claims a court "must be highly deferential" to counsel and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
To demonstrate prejudice
Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012). "[A]ny [increase in the] amount of actual jail time" may constitute prejudice. Glover v. United States, 531 U.S. 198, 203 (2001) ("Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.").
On January 5, 2011 Mr. Winston was indicted on one count of conspiracy to distribute and to possess with intent to distribute narcotics (one kilogram or more of a mixture and substance containing a detectable amount of heroin and twenty-eight grams or more of a mixture and substance containing a detectable amount of cocaine base) and one count of conspiracy to maintain a drug-involved premise within 1,000 feet of a school and a housing facility.
The plea agreement pursuant to which Mr. Winston pled, dated August 10, 2011 (the "August Agreement") (Pet'r. Ex. 2), required him to "agree[] to plead guilty to knowingly, intentionally and unlawfully conspiring to possess with intent to distribute, and to distribute, mixtures and substances containing 1 kilogram or more of heroin a Schedule I controlled substance and 28 grams or more of cocaine base, a Schedule II controlled substance" in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. (See Pet'r. Ex. 2.) The plea agreement set out the mandatory minimum sentence of ten years' (120 months) imprisonment but contained no reference to the relevant Sentencing Guidelines range.
This case was transferred to the undersigned on May 16, 2012, and in connection with Mr. Winston's sentencing hearing, Defense Counsel filed his Memorandum in Aid of Sentencing, which informed the Court that "the first drafts of plea agreements between the Defendant and the Government only dealt with the cocaine base sales [and] it was in fact Defendant's counsel who suggested that if his client were to be credible as a cooperator his plea agreement should include a recognition on his part of the workings of the entire membership." (Pet'r. Ex. 4 at 2.) At Defendant's sentencing hearing Defense Counsel further explained:
Thus, it is clear that there was an earlier plea offer extended by the Government before the August Agreement. The primary factual dispute is whether Mr. Winston was aware of that plea offer before he signed the August Agreement, after which "the [cooperation] arrangement with Mr. Winston [broke] down" (Pet'r. Ex. 5 at 27-28) and the Government ultimately refused to file a § 5k1.1 motion on his behalf such that the Court was bound by the ten-year statutory mandatory minimum (see Pet'r. Ex 4 at 10).
At the evidentiary hearing both Mr. Winston and his former attorney testified. Among the records admitted was a copy of what both parties agree is the earlier plea agreement, dated June 15, 2011 (the "June Agreement") (Pet'r. Ex. 1), which Petitioner claims was never presented to him.
Significantly, at the hearing Defense Counsel was unable to state with any certitude that he had actually reviewed the proposed June Agreement with his client and in fact testified that he had no specific recollection of reviewing that Agreement with Mr. Winston.
Counsel's entry for August 12, 2011 reads, "[m]eeting with Client to review plea agreement and wait time." (Pet'r. Ex. 3 at 7.) Counsel's description in this entry of his purpose "to review" the August Agreement with Mr. Winston, coupled with the accompanying notes for that meeting, which lasted about two hours,
Defense Counsel's lack of specific present recollection of the details of his representation of Mr. Winston over five years ago is not surprising given the large number of defendants he has represented and plea deals he has negotiated over his decades-long career.
Significantly, there was no documentation or testimony that Mr. Winston had reviewed the June Agreement but rejected it, nor any indication in the records of his attorney communicating the rejection of that deal to the Government, or of the Government having withdrawn that offer.
Neither Defense Counsel's testimony nor the records relating to his representation of Mr. Winston confirm or dispute whether the June Agreement was explained to Mr. Winston. Indeed, the only individual who spoke with any certainty regarding that critical fact was Mr. Winston, who unequivocally denied having ever known about, much less reviewed the June Agreement with his attorney before accepting the August Agreement. Petitioner responded affirmatively and decisively to the Assistant United States Attorney's question on cross examination of whether, sitting at the evidentiary hearing, under oath, he could state definitively that his attorney had never advised him of the first plea agreement prior to his guilty plea before Judge Kravitz.
Mr. Winston testified that he first found out there had been an earlier plea offer while preparing for sentencing, well after he pled guilty under the August Agreement, when his attorney told him that the Government was not going to use him as a cooperating witness. He testified that it was only after he questioned how his co-defendants had managed to receive sentences shorter than the ten-year mandatory minimum that his attorney told him of the existence of the June Agreement. Mr. Winston explained that he did not raise the issue of the earlier agreement prior to his sentencing hearing because his attorney had assured him that he would admit to the Court at sentencing that it had been his idea and upon his encouragement that the Government include heroin, and thus the associated ten-year mandatory minimum, in order to enhance Mr. Winston's trial credibility as to his knowledge about the broad drug conspiracy.
Mr. Winston's testimony was logical and credible, despite his obvious self-interest in so testifying. Mr. Winston was clear that, putting aside the failure to communicate the earlier plea deal, he was satisfied with his attorney's representation of him in all other respects. His explanation as to why he said nothing prior to the sentencing hearing is consistent with the record, as Counsel did in fact acknowledge to the Court that he was responsible for the inclusion of heroin in the second plea agreement. Moreover, common sense corroborates the credibility of Mr. Winston's testimony that if he had had the choice between an agreement containing a mandatory minimum of only five years and one with a ten-year mandatory minimum, he would have chosen the former.
The Court concludes that Petitioner has met his burden of proving by preponderance of the evidence that defense counsel did not communicate the substance of the June 15, 2011 plea agreement to his client before he accepted the subsequent August 10, 2011 agreement.
It is undisputed that "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused," Frye, 132 S. Ct. at 1408, and counsel's failure to do so falls below Strickland's objective standard of reasonableness, id. at 1410. The Court has found that the evidence shows that Defense Counsel, more likely than not, failed to inform Mr. Winston of the existence of the June Agreement prior to having Mr. Winston plead guilty to the August one. Such conduct, no matter how well intentioned, falls below an objective reasonableness standard in satisfaction of Strickland's first prong. 466 U.S. at 688.
In order to satisfy the second prong, that Mr. Winston was prejudiced, he must demonstrate that there is a "reasonable probability" that the June Agreement would have been presented to, and accepted by, the Court and that "the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." See Lafler, 132 S. Ct. at 1385. "A reasonable probability is a probability sufficient to undermine confidence in the outcome, but . . . a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Gonzalez v. United States, 722 F.3d 118, 135 (2d Cir. 2013) (quoting Strickland, 466 U.S. at 693) (emphases added). With respect to the first requirement, Mr. Winston credibly testified that had the June Agreement been presented to him in connection with the charges against him, together with a cooperation agreement, he would have pled guilty pursuant to that Agreement.
Consequently, the sole remaining question is whether either "the conviction or sentence, or both, under the [June Agreement] would have been less severe than under the judgment and sentence that in fact were imposed" pursuant to the August Agreement. See Lafler, 132 S.Ct. at 1385 (emphasis added); see also Frye, 132 S. Ct. at 1409 (In order to establish prejudice, a defendant must "show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time) (emphasis added). The question of prejudice is made difficult by the fact that the June Agreement, due to the weight of cocaine base included, carried an advisory Guidelines sentencing range that was twenty-two to twenty-seven months longer than the applicable range under the August Agreement; but nonetheless, several facts persuade the Court that Mr. Winston was prejudiced by not having been presented with the earlier Agreement.
First, the explicit use of the word "or" in both Lafler and Frye implies that a defendant can establish prejudice by showing that he would have been convicted of a less severe charge, even where that lesser charge does not result in a less severe sentence. Here, Mr. Winston pled guilty under an Agreement which resulted in him being convicted of violating 21 U.S.C. § 841(b)(1)(A), carrying a mandatory minimum twice the length of the mandatory minimum under § 841(b)(1)(B), the Section under which he would have been convicted under the June Agreement. Moreover, by pleading to the August Agreement, Mr. Winston agreed that he was responsible for selling not only cocaine base, but heroin as well, a more serious charge. These facts support this Court's conclusion that Mr. Winston has established that he was convicted of what is undoubtedly a more severe crime than he would have been had he entered the June Agreement, notwithstanding the higher advisory Guideline sentencing range in that earlier offer.
Second, at sentencing the Government refused to move for the third point for acceptance of responsibility under 3E1.1 and sought a sentence of 235 months, at the top of the guideline range. (See Pet'r. Ex. 5 at 20-21, 58.) Counsel for the Government admitted at the evidentiary hearing that the Government's view of Mr. Winston at the sentencing stage was likely negatively colored because Mr. Winston "couldn't ultimately just be forthright and accept the fact that he also did the heroin sales." The Court, in its review of the sentencing transcript and record as a whole, concludes that its perception of Mr. Winston was similarly negatively impacted because of the sequence of events stemming from the inclusion of heroin in the final Agreement. The Court finds that there is a reasonable probability that had Mr. Winston instead pled to the June Agreement with only cocaine base, the Government's harsh stance on his sentence would have been substantially softened, shifting the tone of the entire sentencing hearing and casting Mr. Winston in a less negative light.
Relatedly, without heroin in the plea agreement, Mr. Winston's sentencing argument for parity with his co-defendants who were convicted only of charges involving crack would likely have found more perch. Mr. Winston's attorney argued extensively in his Memorandum in Aid of Sentencing and at sentencing that the Court should grant a downward departure from the Guidelines because Mr. Winston faced "a higher guideline exclusively due to his cooperation with the Government." (Pet'r. Ex. 4 at 14.) The basis of this argument is that because Mr. Winston, in an effort to make himself a more credible Government witness, "acknowledge[d] not only what he was personally involved with but also the drugs and quantities of other members of the conspiracy," he started off with a higher Guidelines range than did his co-defendants.
Finally, although the comparative advisory Guidelines ranges were oddly inversely related to the types of drugs involved, with the Agreement that included heroin resulting in a lower Guideline range than the one that did not due to the respective quantities of the cocaine base, the stipulated Guidelines range for the June Agreement was significantly longer than would have been necessary to meet the goals of sentencing and a non-Guidelines sentence would likely have been considered, with an appropriate sentence being somewhat less than the 165 months imposed.
While the Court acknowledges that the higher sentencing range associated with the June Agreement makes the question of prejudice an especially interesting one, the simple fact that Mr. Winston received a conviction that was more severe than he would have under the initial Agreement is sufficient to constitute prejudice. See Lafler, 132 S.Ct. at 1385; Frye, 132 S. Ct. at 1409. Additionally, because even "a minimal amount of additional time in prison [can] constitute prejudice," Mr. Winston has established a reasonable probability that his sentence was longer than it would have been under the June Agreement, also meeting the standard for prejudice. See Glover, 531 U.S. at 203; see also Morales v. United States, No. 3:12-CV-0194 MPS, 2014 WL 7369512, at *11 (D. Conn. Dec. 29, 2014) ("[w]hen a petitioner can demonstrate a reasonable probability that his sentence was increased due to his counsel's errors, even relatively short increases in the ultimate sentence received will suffice to show Strickland prejudice."). This result seems particularly clear given the consequences that ensued as a result of having included heroin in the Agreement.
Because Petitioner met his burden under the Strickland test to prove that Defense Counsel's failure to timely communicate the June Agreement to him both falls below an objective reasonableness standard and is prejudicial to Mr. Winston, he is entitled to have his sentence vacated, set aside, or corrected under 28 U.S.C. 2255.
For the foregoing reasons, Petitioner's motion [Doc. # 1] is GRANTED as to his claim of ineffective assistance of counsel for failure to communicate the terms of the first plea offer. Accordingly, his sentence is vacated and a resentencing hearing will be scheduled forthwith.
IT IS SO ORDERED.
