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Case 3:02-cr-00191-CFD

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. SAMMY VIRELLA : : : : : CIVIL NO. 3:02CR191 (CFD) CRIM. NO. 3:03CV1978(CFD)

January 18, 2008

UNITED STATES' STATUS REPORT RE: SAMMY VIRELLA'S MOTION TO VACATE SET ASIDE, OR CORRECT SENTENCE The petitioner Sammy Virella was arrested on a criminal complaint on June 24, 2002, and presented before Magistrate Judge Smith that same day. Mr. Virella was detained pretrial. An

indictment charging him with multiple crimes was unsealed on July 24, 2002, and Mr. Virella pleaded not guilty the next day. On

September 19, 2002, Mr. Virella pleaded guilty Count One of the indictment. Thereafter, on December 19, 2002, this Court

conducted a sentencing hearing and imposed a term of incarceration of 168 months of imprisonment to be followed by a five year term of supervised release. 244]. See Judgment [Doc. No.

According to the Federal Bureau of Prisons' inmate

locator, Mr. Virella is incarcerated at Devens Federal Medical Center in Massachusetts with an expected release date of February 14, 2015. Mr. Virella did not appeal his conviction or sentence. Rather, on November 17, 2003, he filed a motion to vacate his conviction under 28 U.S.C. § 2255. On February 9, 2004, the

Court directed that a copy of the petition be served on the

Case 3:02-cr-00191-CFD

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government.

See Doc. No. 488.

This appears to have been

accomplished, because a copy of the order is in the government's closed file; however, the undersigned has no recollection of ever receiving the same and has obviously never responded. The undersigned has now reviewed Mr. Virella's petition. his papers, Mr. Virella asserts that prior to his arrest he lapsed into a highly debilitating coma and, as a result, lost the ability to read, write or otherwise comprehend everyday matters. He challenges his conviction on the following grounds: (1) defense counsel ineffectively failed to alert the Court to Mr. Virella's mental illness and health issues or, alternatively, ineffectively failed to move for a downward departure on the mental health grounds and (2) the Court failed to determine whether Mr. Virella was competent to stand trial or enter a plea of guilty. To properly respond to Mr. Virella's claims, the undersigned believes that a review of the change of plea hearing and sentencing hearing must be undertaken. It is counsel's In

recollection that the parties were aware of Mr. Virella's health issues and addressed the Court accordingly. It is, moreover,

counsel's distinct impression that the Court conducted an appropriate canvas of the defendant to determine whether the defendant was able to understand the proceedings and knowingly and intelligently plead guilty. Ultimately, an examination of

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Case 3:02-cr-00191-CFD

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the transcripts is necessary.

To that end, the government has

ordered copies of the change of plea hearing and sentencing hearing conducted on September 19, 2002 and December 17, 2002, respectively. Upon information and belief, these transcripts The government will

will be available in approximately ten days.

be able to file its response to Mr. Virella's claims within thirty days of receiving the transcripts. Accordingly, the

government will file a response by no later than February 29, 2008, unless ordered by the Court to proceed differently. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY MICHAEL J. GUSTAFSON ASSISTANT U.S. ATTORNEY 157 Church Street New Haven, CT 06510 Telephone No. (203) 821-3700 Federal Bar No. CT01503 CERTIFICATION I hereby certify that a copy of the foregoing status report was mailed this ___ day of January 2008, to: Samuel Virella #14038-014 Devens FMC Box 879 Ayer, Mass. 01432 Gary D. Weinberger Federal Public Defender's Office 10 Columbus Blvd,, 6th floor Hartford, CT 06106 ___________________________ MICHAEL J. GUSTAFSON -3-