United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Defendant Javan Tooley ("Tooley") has filed a motion to vacate his guilty plea pursuant to 28 U.S.C. § 2255. D. 27. Tooley contends his guilty plea was not knowing, voluntary and intelligent and thus in violation of his due process rights, because he entered the plea while unaware of Annie Dookhan's misconduct at the Hinton Drug Lab. Id. For the reasons stated below, the Court DENIES Tooley's motion to vacate.
A petitioner may seek post conviction relief under 28 U.S.C. § 2255 if his "sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). It is the petitioner's burden to make out a claim for § 2255 relief. Id.
III. Factual and Procedural History
Tooley pled guilty on May 28, 2010 to a one-count Information, charging him with distribution of cocaine, in violation 21 U.S.C. § 841(a)(1). D. 12, 5/18/10 dkt. entry. The charge arose out of an undercover officer's purchase of two baggies of crack cocaine from Tooley and his co-defendant, Sean Jones, on January 21, 2010. D. 40-2 at 2. The police arrested both men after consummation of the transaction and, later at the police station, it was discovered that Tooley was secreting a bag containing thirty baggies of crack cocaine in his buttocks. D. 40-2 at 6. At the plea hearing, Tooley was represented by counsel and waived his right to an indictment. 5/18/10 dkt. Entry; D. 15; D. 40 (transcription of 5/18/10 plea hearing) at 11-12. As part of its recitation of the factual basis for the plea, the government noted that the suspected crack cocaine had field tested positive for cocaine, but that the government was still awaiting the final lab certification. Id. at 11-12. That certification was later provided, after Tooley's guilty plea, by Annie Dookhan ("Dookhan"). D. 27-2. On November 11, 2010, the court sentenced Tooley to sixty months of incarceration followed by five years of supervised release. D. 23. Upon learning of Dookhan's misconduct at the Hinton Lab, Tooley filed the instant petition. D. 27. At Tooley's request, with the assent of the government, the Court stayed the matter pending the publication of a report concerning the Hinton Lab. D. 26; D. 46. Following receipt of the report and receipt of initial and supplemental filings, D. 27-29; D. 37-42; D. 49; D. 55; D. 58-60; D. 63; D. 65-66, and a non-evidentiary hearing, D. 62, the Court took the matter under advisement.
A. Applicable Standard under Ferrara
To establish that a guilty plea was involuntary, a petitioner must show: (1) "that some egregiously impermissible conduct (say, threats, blatant misrepresentations, or untoward blandishments by government agents) antedated the entry of his plea, " and (2) "that the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice." Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006). For the purposes of the second prong regarding materiality, a petitioner must show a "reasonable probability, " i.e., "a probability sufficient to undermine confidence in a belief that the petitioner would have entered a plea." Id. In making such determination, however, the Court "must take an objective approach" and consider "whether a reasonable defendant standing in the petitioner's shoes would likely have altered his decision to plead guilty" if he had known the sequestered evidence. Id. Although not exhaustive, relevant factors for making such determination include: "(i) whether the sequestered evidence would have detracted from the factual basis used to support the plea; (ii) whether the sequestered evidence could have been used to impeach a witness whose credibility may have been outcome-determinative; (iii) whether the sequestered evidence was cumulative of other evidence already in the defendant's possession; (iv) whether the sequestered evidence would have influenced counsel's recommendation as to the desirability of accepting a particular plea bargain; and (v) whether the value of the sequestered evidence was outweighed by the benefits of entering into the plea agreement." Id. (internal citations omitted).
In Ferrara, the First Circuit concluded that the government's failure to notify the petitioner of the recantation of a key witness, testimony upon which the jury's verdict "may well have hinged, " constituted "impermissible prosecutorial misconduct." Id. at 293. The court determined such impermissible conduct was material to the petitioner's decision to plead guilty because had the evidence of the recantation come to light, the judge likely would not have accepted the petitioner's plea; the recantation would have provided a new and extremely powerful basis for impeaching a key witness and the jury's evaluation of same; the evidence would likely would have affected the plea negotiations because the sequestered evidence was "powerful impeachment evidence" against a key witness; and the petitioner's attorney would have advised his client that the government's allegations were "highly defensible." Id. at 296.
B. Tooley's Petition
1. Egregiously Impermissible Conduct
The government agrees with Tooley that the scandal surrounding Dookhan's conduct at the Hinton Drug Lab, where the drugs seized at Tooley's arrest were originally tested and certified by Dookhan, "remains profoundly disturbing." D. 37 at 1. Dookhan mishandled evidence and produced false drug reports over a period of years, pleading guilty in November of 2013 to various criminal charges concerning her misconduct. Id. & n. 1. The First Circuit has not yet opined conclusively that Dookhan's actions constituted egregiously impermissible conduct. Wilkins v. United States, 754 F.3d 24, 28 (1st Cir. 2014); cf. United States v. Smith, No. 09-10006-RGS, 2013 WL 6798931, at *3 (D. Mass. Dec. 20, 2013) (declining to find Dookhan's production of drug certifications egregiously impermissible when a petitioner did not claim innocence because "nothing implicates the crux of the first prong of the Ferrara exception-coercive misconduct that compromises a defendant's claim of factual innocence ") (emphasis in ...