Free Motion for Order - District Court of Connecticut - Connecticut

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Case 3:02-cr-00054-SRU

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No. 3:04CV930 (SRU) No. 3:02CR54 (SRU) FEBRUARY 16, 2005

GOVERNMENT'S REQUEST FOR AN ORDER By pro se motion and memorandum dated filed June 6, 2004, petitioner David Caldwell moved to vacate, set aside or correct his conviction and sentence. attorney, Alexander H. In particular, Caldwell claimed his Schwartz, Esq., provided ineffective

representation on this basis. On June 14, 2004, this Court entered an Order to Show Cause, ordering the Government to respond to the petition. The Government responded on July 23, 2004 requesting On August 5, 2004, Caldwell moved to

that the petition be denied.

stay a decision on his petition pending the Supreme Court's review of the Sentencing Guidelines in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), to which the Government responded on August 10, 2004. By pro se filing dated January 24, 2005, petitioner David

Caldwell has filed a "Declaration of David Caldwell in Support of Habeas Corpus Motion Pursuant to 28 U.S.C. 2255." While the

Declaration primarily raises United States v. Booker, 125 S. Ct. 738 (2005), as a new basis to grant his motion, Caldwell also asserts in the filing at page 2, that "[a]fter my sentencing, I had instructed my attorney to file a notice of appeal, because I wanted

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to appeal my sentence, on the grounds that it was too harsh." The Government intends to reply to Caldwell's Declaration. While Caldwell's claims may be considered by the Court on the basis of the existing record and, therefore, in the Government's view, could be disposed of on a summary basis, the Government

respectfully submits that it would be prudent to address Caldwell's suggestion that his attorney ignored his instruction to file a notice of appeals. Copies of the petition, the Government's Response and

Caldwell's Declaration, have been sent to

Mr. Schwartz, who has

thereafter advised the undersigned that he has "notes in [his] file that [he] specifically discussed appealing Mr. Caldwell's

conviction and he gave [him] specific instructions regarding taking an appeal." Mr. Schwartz indicated that, while he is willing to

provide an affidavit, he would prefer being ordered to do so. Accordingly, the Government requests that the Court order Mr. Schwartz to supplement the record with an affidavit regarding discussions, if any, regarding an appeal and whether Caldwell directed Mr. Schwartz to file a notice of appeal. See, e.g., Jan. 26,

Santana v. United States, 2005 WL 180932 at *6 (S.D.N.Y.

2005); Rodriguez v. New York, 2002 WL 31251007 at *1-2 (S.D.N.Y. Oct 8, 2002) (citing cases); Davila-Bajana v. United States, 2002 WL 2022646 at *4 (E.D.N.Y. Jun 26, 2002)(Raggi, J.)(based on defense attorney's affidavit contradicting petitioner's account,


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court rejected 2255 petitioner's claim that his attorney ignored his request to file a notice of appeal, without holding a hearing); Rosa v. United States, 170 F. Supp.2d 388, 298-99 (S.D.N.Y. 2001); cf. Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001)(matter resolved on the basis of "a detailed affidavit from trial counsel credibly describing the circumstances concerning [Gonzalez's]

failure to testify."). Government, it will

Once that affidavit is received by the file its response to the petitioner's

"Declaration." Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY

ANTHONY E. KAPLAN ASSISTANT UNITED STATES ATTORNEY FEDERAL BAR No. ct 08083 P.O. BOX 1824 NEW HAVEN, CT 06508 (203) 821-3700 By______________________________ ALEX HERNANDEZ Assistant United States Attorney Federal Bar No. ct. 14806 915 Lafayette Boulevard, Room 309 Bridgeport, Connecticut 06604 Tel. (203) 696-3000


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CERTIFICATION OF SERVICE This is to certify that a copy of the within and foregoing has been mailed, postage prepaid, this 16th day of February, 2005, to Alexander H. Schwartz, 3695 Post Road, P.O. Box 701, Southport, CT 06490 and David Caldwell (No. 14469-014), F.C.I. Otisville, P.O. Box 1000, Otisville, New York, 10963.