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Sullivan v. United States

United States District Court, E.D. New York

February 26, 2018

BRIAN SULLIVAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          For Petitioner: Brian Sullivan, pro se.

          For Respondent: Carrie Nicole Capwell, Esq. United States Attorney's Office Eastern District of New York Saritha Komatireddy, Esq.

          MEMORANDUM AND ORDER

          Joanna Seybert, U.S.D.J.

         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.

         BACKGROUND

         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:

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 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:

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 superseding indictment.
The Defendant: I had an agreement with others to conspire to distribute marijuana, pretty much specifically in Suffolk County.
The Court: And was that time frame in 2010 when this occurred?
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 Tomlinson stated:

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.)

         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. (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. 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, ...


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