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Tellado v. United States

United States Court of Appeals, Second Circuit

March 12, 2014

SHAWN TELLADO, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

Argued: May 24, 2012.

As Amended May 23, 2014.

Page 49

On appeal from a judgment of the United States District Court for the District of Connecticut (Kravitz, J.) denying defendant's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his 188-month sentence based, in part, on the district court's imposition of the career offender enhancement under the United States Sentencing Guidelines for two drug convictions under Connecticut General Statutes § 21a-277, which this court later determined in United States v. Savage, 542 F.3d 959 (2d Cir. 2008), do not qualify as controlled substance offenses for enhancement purposes, and denying defendant's motion to amend his original 28 U.S.C. § 2255 motion to include an ineffective assistance of counsel claim.

Terence S. Ward, Assistant Federal Public Defender, Federal Public Defender's Office for the District of Connecticut, Hartford, Connecticut, for Petitioner-Appellant.

Robert M. Spector (Sandra S. Glover, on the brief), Assistant United States Attorneys, on behalf of Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, Connecticut, for Respondent-Appellee.

Before: HALL and LIVINGSTON, Circuit Judges, BERMAN, District Judge.[1]

OPINION

Page 50

Hall, Circuit Judge :

Shawn Tellado (" Tellado" ) appeals from a judgment entered on July 27, 2011, in the United States District Court for the District of Connecticut (Kravitz, J.) denying his motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.[2] On appeal, Tellado argues (1) that because the district court omitted, during the Rule 11 proceedings, an adequate explanation of his right to attack collaterally his sentence--a right he waived in his plea agreement--his waiver of that right was not knowing and voluntary; and (2) that the district court erred when it denied his motion to amend his § 2255 motion to include an ineffective assistance of counsel claim. See generally Tellado v. United States, 799 F.Supp.2d 156 (D. Conn. 2011). We hold that when entering his guilty plea Tellado knowingly waived his rights to attack collaterally his sentence. Moreover, the process by which the district court advised Tellado of his rights to appeal and to attack collaterally his conviction did not constitute plain error.[3] See United States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013) (establishing plain error review applies to appeals challenging portions of a plea agreement not objected to at the time the plea is entered). We also hold that the district court did not abuse its discretion when it denied Tellado's motion to amend his petition to plead an ineffective assistance of counsel claim.

For the reasons that follow, we affirm the judgment of the district court.

Background

A federal grand jury indicted Tellado as one of a number of defendants involved in a drug conspiracy, in violation of 21 U.S.C. § 846, charging him with conspiracy " to possess with intent to distribute, and to distribute controlled substances, namely mixtures and substances containing a detectable amount of cocaine and cocaine base, Schedule II controlled substances, and heroin, a Schedule I controlled substance, contrary to the provisions of Title 21, United States Code, Section 841(a)(1)." United States v. Tellado, 3:06-CR-00269 (MRK), Indictment 2, Oct. 4, 2006, ECF No. 1.[4] Thereafter, Tellado entered into a plea agreement by which he admitted (1) that a conspiracy existed, (2) that he ...


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