Free Reply/Response Misc - District Court of Connecticut - Connecticut

‘ Case 3:00-cr-00115-JCH Document 95 Filed O9/O1/2005 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,
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VINCENT wnirntnv, I I mi PORT CU “"
Defendant _ I
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DEFENDANT’S MOTION TO VACATE SENTENCE Y
VINCENT WHITELEY, defendant in the above-captioned action, respectfully l
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requests this Court to grant his petition to vacate his sentence pursuant to Title 28,
U.S.C., § 2255, or in the alternative, to hold a hearing on defendant’s allegations.
I. Factual Background - I
On June 8, _2001, this court sentenced defendant to a term of imprisonment of 96 I
months following his plea_of guilty to count 2 of the indictment alleging
violations of Title 18, U.S.C. § 1029 (Q) (2) and § 2. The sentence imposed. was i
three (3) times greater than the guideline imprisonment range of 27 to 33 months.
Following an unsuccessful appeal, defendant, acting tg g, challenged his
conviction on various grounds and moved to vacate his sentence. The Court ,
reviewed the petition and appointed the undersigned attorney to represent i
defendant in the prosecution of his claims.
II. Grounds for Hearing
1. Defendant’s Mental Health
As-more fully set forth in the excerpts of defendant’s medical records attached ,
. to defendant’s Motion for Reconsideration dated May 26, 2005, gdefendanthas l
- suffered and- continues to suffer significant mental problems. U From a
diagnosis of "psychotic disorder n.o.s." (bi-polar disease) in January 2000 to
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apparently "clearer thinking" on June 6, 2001, 2 days before sentencing, the
record is replete with evidence of defendant’s periodic wide mood swings, _
delusional thinking and hallucinations. There were no medical records · I
available at sentencing, nor was there any expert testimony offered to support
a claim of downward departure based on Diminished Capacity pursuant to
§5K2. 13 of the Sentencing Guidelines. I
Defendant was precluded at sentencing from offering such testimony, but I
intends to do so at a hearing if this Court grants his petition under §2255. He
` expects to call as witnesses both Dr. Dedios, his treating physician at Garner
Correctional Center, and also Attorney Audrey Felsen on the subject of his l
mental health. He also hopes to have available at that time medical records I
from the Wheeler Clinic in Meriden, Connecticut, where he was treated in 2
1988 -1989. I I
2. Criminal Histo Points .
Defendant contends that his criminal history was calculated incorrectly, and
that the Court relied on such untrue calculation in determining what sentence
to impose. The PSR reflects total criminal history points of 43. Defendant
, believes the true number is 12.
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The Court also erred by relying on a 3% year-term of imprisonment imposed
by the State Court in Meriden (Reilly, J.) on July 14, 1994 in Dkt. No.7M-
CR93—0084829—J in concluding that such a sentence (the longest ever given to
defendant) had not deterred him from further crimes. In fact, that sentence
was suspended by Judge Dunnell on or about February 17, 1998. No new
sentence was ever imposed. Under the circumstances, not only was defendant
improperly assessed with 3 points, but the 3% year sentence influenced the
Court (see sentencing transcript, 1164-66) in deciding to depart upward from
Level 11 to Level 21.
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. Case 3:00-cr-00115-JCH Document 95 Filed O9/O1/2005 Page 3 of 4
III. Conclusion
Each of the above issues tend to undermine the Court’s dramatic increase in ,
defendant’s base level offense. For the reasons stated, defendant respectfully
requests the Court to grant his petition without hearing and schedule a new date
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for sentencing, or in the alternative, to schedule a hearing in order to afford _
p defendant an opportunity to be heard on the issues raises herein.*
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Dated: August 31, 2005 I
Stamford, CT I
- THE DEFENDANT, I
VINCENT WHITELY P
{U; T. Z
By: L ·
. ‘ Peter L. Truebner ‘
- 100 Prospect Street (South Tower) I
` Stamford, CT 06901 I
(203) 323—454O _ ¤
Counsel for Defendant

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* Since the Court granted defendant’s Motion for Reconsideration, he has been
transferred to the Federal Correctional Institute at Ft. Dix, New Jersey. Upon ` I
information and belief, there are audio and video teleconferencing facilities available I
that would allow defendant to participate in such a hearing without being physically
present in the courtroom, if the Court is so inclined. _
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~ ' l Case 3:OO—cr-OO115—JCH Document 95 Filed O9/O1/2005 Page 4 of 4
CERTIFICATE OF SERVICE I
This is to certify that a copy of the foregoing Motion was mailed postage prepaid,
James J, Finnerty, Esq., Assistant United States Attorney, United States Courthouse, 915
Lafayette Blvd, Bridgeport, Connecticut 06604 on the 3 lst day of August, 2005.
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Peter L. Truebner
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