United States District Court, E.D. New York
Petitioner: Brian Sullivan, pro se.
Respondent: Carrie Nicole Capwell, Esq. United States
Attorney's Office Eastern District of New York Saritha
MEMORANDUM AND ORDER
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.
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
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:
The Court: If you plead guilty, I will have to ask you
questions about what [ ] you did in order to satisfy myself
that you are guilty of the charges to which you seek to plead
guilty. And you will have to answer my questions and
acknowledge your guilt. Therefore, you will be giving up your
right not to incriminate yourself. Do you understand?
The Defendant: Yes.
(Plea Tr. 6:20-8:21.) Petitioner confirmed that he entered
into a Plea Agreement with the Government and the waiver
provisions contained 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
(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:
The Court: Mr. Sullivan, did you as charged in Count 1 of the
superseding indictment on or about and between March 1, 2010
and November 16, 2010, here in the Eastern District of New
York, along with others, did you knowingly and intentionally
conspire to distribute and possess with intent to distribute
a controlled substance; in this instance, marijuana.
The Defendant: Yes.
The Court: Mr. Sullivan, I am going to need you now please,
if you would, to tell me in your own words what you did in
connection with the acts that are charged in Count 1 of the
The Defendant: I had an agreement with others to conspire to
distribute marijuana, pretty much specifically in Suffolk
The Court: And was that time frame in 2010 when this
The Defendant: Correct.
The Court: And you entered into this agreement freely with
the others involved. Is that correct?
The Defendant: Correct.
The Court: And at the time you entered into this agreement,
conspiring to distribute and possess with intent to
distribute marijuana, did you know you were breaking the law?
The Defendant: Yes.
(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
Based upon the information that's been given to me by the
government, as well as by the defendant Mr. Sullivan and his
counsel, I find that Mr. Sullivan is acting voluntarily, that
he fully understands his rights and the consequences of his
plea and that there is indeed a factual basis for the plea.
I, therefore, am recommending to Judge Seybert, that the plea
of guilty here to the lesser included offense of Count One of
the superseding indictment be accepted.
(Plea Tr. 19:10-19:19.)
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. (See Sentencing Tr.,
Def.'s Resp. Ex. D, Docket Entry 12-2 at 1-30,
4:20-5:11.) The Court then confirmed that neither defense
counsel, nor the Government, had objections to 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.
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.)
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, ...