habeas 4-23-2015 government response to brief to amend petition

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U.S. Department of Justice

United States Attorney District of New Jersey

970 Broad Street, Suite 700 (973)645-2700 Newark, NJ 07102

April 23, 2015 Honorable William J. Martini Martin Luther King, Jr. Federal Building & U.S. Courthouse 50 Walnut Street Newark, New Jersey 07102

Re: David Connolly v. United States Civil No. 14-3574 (WJM) ELECTRONICALLY FILED Dear Judge Martini:

Please consider this letter brief on behalf of the Government in response to the March 12, 2015 letter of Elizabeth Foster, Esq., counsel for David Connolly, seeking to amend Connollys Section 2255 petition by adding new claims for relief. For the reasons set forth herein, the government opposes this motion.

1. Connollys New Claims of Ineffective Assistance of Counsel do Not

Relate Back to the Ineffective Assistance Claims Asserted in His Original Petition A claim raised in a motion to amend a Section 2255 petition filed after

the expiration of the one year limitation period to file a petition is considered to have been filed within the requisite one year period only if the claim relates back to the petitioners original Section 2255 petition.1 See Mayle

1 Connollys judgment of conviction was entered on June 6, 2013. Connolly did not file a direct appeal, and therefore, his judgment of conviction became final when his time for filing

Case 2:14-cv-03574-WJM Document 22 Filed 04/23/15 Page 1 of 6 PageID: 249

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v. Felix, 545 U.S. 644, 656 (2005); Fed. R. Civ. P. 15(c). An amendment relates back if the claim arose out of the same conduct, transaction, or occurrence set out or attempted to be set out in the original pleading. Fed. R. Civ. P. 15(c)(1)(B). Claims do not relate back merely because they arose out of the same trial and conviction. Mayle, 544 U.S. at 650. Instead, the claims must be tied to a common core of operative facts. Id. at 664. Applying this standard to the circumstances in the instant case, supports the conclusion that Connollys motion to amend his Section 2255 petition should be denied.

On or about June 4, 2014, Connolly filed a pro se brief in support of a

Section 2255 petition in which he claimed that 1) Counts One and Ten of the superseding indictment to which he had pleaded guilty failed to state a cause of action; and 2) that his attorney Gerald Saluti, Esq., had provided ineffective assistance of counsel by counseling him to plead guilty rather than moving to dismiss an indictment which contained certain counts which did not state a cause of action.

On or about October 25, 2014, the Government filed an Answer to petitioner Connollys Section 2255 petition. On or about December 2, 2014, petitioner Connolly requested an additional thirty days to file a response to the Governments Answer.

On or about January 4, 2015, Ms. Foster filed a Notice of Appearance on behalf of petitioner Connolly. Two days later, Ms. Foster filed a request for an additional extension of time to file a reply. On or about January 9, 2015, this Court entered an order granting petitioner until February 6, 2015 to serve a reply which responds to defenses and arguments raised in the Answer. No reply was filed by February 6, 2015. Instead, on February 9, 2015, Ms. Foster filed another letter requesting additional time to review the prior attorneys file and the right to amend the claims asserted in the pending Section 2255 petition. The government filed a response to Ms. Fosters February 9, 2015 letter on or about February 13, 2015 opposing the request of additional time as well as the request to amend the original Section 2255 petition.

On or about February 19, 2015, this Court granted petitioner until

March 5, 2015 to file and serve a reply which responded only to the defenses

his direct appeal expired on or about June 20, 2013. See Fed. R. App. P. 4. Therefore, the one year time period for formally filing any claims expired on or about June 20, 2014. See 28 U.S.C. Section 2255(f)(1)(one year period runs from the date on which the judgment of conviction becomes final).


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and legal arguments raised in the answer. This Court also gave petitioner until March 12, 2015 to submit a letter describing the claims that he wished to include in his amended petition along with an explanation as to why the Court should permit the amendment.

On or about March 6, 2015, Ms. Foster filed a reply to the governments

answer, on behalf of petitioner. In contravention of this Courts instructions, the reply contained numerous new factual assertions regarding the alleged ineffective assistance of Gerald Saluti, Esq. that were not contained in the original petition, including that he: 1) generally overcharged his clients; 2) did no work in petitioners case and ignored petitioners calls; 3) advised petitioner that he would never go to jail; 4) did not read the plea agreement; and 5) advised petitioner not to speak to the probation officer preparing his presentence investigation report. In addition, rather than addressing the alleged insufficiency of the charging language in the indictment, which was the claim asserted in the original petition, the reply disputed the sufficiency of the evidence underlying the charged offenses to which the defendant pleaded guilty. Notably, no affidavit was submitted from the defendant supporting any of these allegations. Instead, petitioners wife Donna Connolly submitted a declaration containing conclusory hearsay comments regarding what her husband believed, and what he relied upon, in making decisions about his case.2

On or about March 12, 2015, Ms. Foster filed a letter, on behalf of

petitioner setting forth the reasons why petitioner should be permitted to file an amended petition. In response to the governments assertion that the amendments must be tied to a common core of operative facts, Ms. Forster stated simply that this legal requirement was satisfied as the original and new claims both contained claims of ineffective assistance of counsel. However, it is not enough that both an original motion and an amended motion allege ineffective assistance of counsel . . . See Dodd v. United States, 614 F.3d 512, 515 (8th Cir. 2010). A petitioner does not satisfy the Rule 15 relation back standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance.) United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005). 2 In support of the allegations regarding Mr. Saluti, Ms. Foster also improperly relied upon 1) snippets of a civil complaint that she filed against Mr. Saluti and his law firm, on behalf of a fired employee, an individual who subsequent to the lawsuit was charged in or about December 2014 by an Essex County grand jury with theft from Salutis law firm; and 2) recommendations made by the New Jersey Supreme Courts Ethic Committee which Ms. Foster incorrectly characterizes as findings by the New Jersey Supreme Court and which have nothing to do with Salutis representation of the petitioner in the instant federal case.


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Rather, the allegations must be of the same time and type as those in

the original motion, such that they arise from the same core set of operative facts. See United States v. Hernandez, 436 F.3d 851, 857 (8th Cir. 2006)(quoting Mayle, 545 U.S. at 650), and holding that ineffective assistance claim regarding cross-examination did not relate back to claim arising from counsels alleged failure to object to the admission of evidence); United States v. Gonzalez, 592 F.3d 675, 679-680 (5th Cir. 2009)( finding that claim of ineffective assistance based upon counsels failure to file an appeal did not relate back to claim regarding ineffective assistance at sentencing); United States v. Mandacina, 328 F.3d 995, 1002 (8th Cir. 2003)(failure to investigate police interview naming potential suspects was not a similar type of error as failing to discover exclupatory footprints); United States v. Duffus, 174 F.3d 333, 336-337 (3d Cir. 1999)(holding that new claim that counsel failed to move to suppress narcotics did not relate back to original Section 2255 claim that counsel was ineffective for failure to challenge use of particular sentencing guidelines).

In the case at bar, the original and amended claims are not of the same

time and type. The original claim focused on counsels failure to make a legal argument regarding the sufficiency of the charging language in the indictment. The new ineffective assistance claims involve alleged inattentiveness to defendants case,3 overcharging, and purported promises regarding the punishment that the defendant would receive. These claims are based on an entirely different set of facts as alleged in the original petition. As a consequence, the motion to amend should be denied.

2. Petitioner Has Not Established his Actual Innocence of the Charges

in the Indictment and Therefore Cannot Avoid the One-Year Limitation Period.

Defendant pleaded guilty to Counts One and Ten of the Indictment,

charging him with securities fraud and money laundering. At that plea hearing, he was fully advised of the maximum statutory sentences that he faced on these crimes, as well as the elements of those crimes. In addition, he answered questions which provided this Court with a more than adequate

3 The government notes that contrary to petitioners assertion, Mr. Saluti did file a sentencing memo. In that eleven page submission, counsel argued in mitigation of sentencing that petitioners business was initially fraudulent but that defendant only became involved in deceptive conduct after the national economic downturn, that he had a misguided confidence in his own abilities as an investment manager, and that his motivation was not primarily greed but a desire to satisfy his investors. This Court ultimately was persuaded to vary two levels from the applicable guideline range.


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factual basis to conclude that he had committed these crimes. Among other things, the defendant admitted that he solicited investors to buy shares in companies that own rental apartment buildings that he would manage, that he would send a prospectus to each potential investor, that the prospectus informed investors that each entity would be financially independent and separately managed, that he commingled revenues from investment entities in order to make up for negative cash flow, that he commingled investor capital contributions, that he concealed and misrepresented to investors in prosepectuses and other communications the financial state of the investment entities, the occupancy rates at certain buildings, and the capital reserves available for certain investment entities, that he received $10 million in capital contributions from investors in Hampshire Court and Marshall Woods in response to prospectuses which he misappropriated for other purposes rather than the purchase of those properties; and that he transferred approximately $900,000 from one bank account to another bank account with knowledge that this money was obtained from investors by fraud.4

Nothing that petitioner has submitted to this Court calls into question

petitioners admissions at his plea hearing nor the abundance of evidence supporting the charges in the Indictment which were set forth in detail in the Indictment and in the Presentence Investigation Report, and which the government was prepared to prove beyond a reasonable doubt at trial through witness testimony, and documentary evidence.

Petitioner Connollys motion to amend his Section 2255 petition should

be denied. Respectfully submitted, PAUL J. FISHMAN United States Attorney

/s Leslie F. Schwartz By: LESLIE FAYE SCHWARTZ Assistant U.S. Attorney

cc: Elizabeth Foster, Esq. (by ECF)

4 The statements regarding the factual basis for the offense are based upon the questions in the governments plea memorandum to this Court. If necessary, the government can order transcripts of the sentencing and plea hearings in this matter.


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habeas 4-23-2015 government response to brief to amend petition

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