United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Defendant Dondre Snow ("Snow") has filed a motion to vacate his sentence under 28 U.S.C. § 2255. D. 53. Snow argues that his guilty plea was not knowing, voluntary and intelligent 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 Snow's motion to vacate.
Pursuant to 28 U.S.C. § 2255, an individual may move to vacate his sentence if such "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) (citing Hill v. United States, 368 U.S. 424, 426-27 (1962)). The petitioner bears the burden of demonstrating cause for relief under § 2255. Id . A conviction is subject to collateral attack if based upon a guilty plea which was not made knowingly or voluntarily. Ferrara v. United States, 456 F.3d 278, 289 (1st Cir. 2006). In the usual circumstance in which a defendant was warned of the consequences of his plea and the range of potential punishment before entering a guilty plea, a defendant must demonstrate two things to prove involuntariness: (1) egregiously impermissible conduct by a government agent predated his plea; and (2) this conduct materially affected his decision to plead guilty. Id. at 290.
III. Factual and Procedural History
Snow was charged with distribution of cocaine in a school zone in violation of 21 U.S.C. §§ 841(a)(1), 860. D. 1. The charge resulted from the controlled purchase of crack cocaine. D. 146-1. On June 7, 2011, an ATF Special Agent and two Boston Police detectives met with a cooperating witness ("CW") for the purpose of arranging the controlled buy. Id . The CW was given government funds, the serial numbers of which had been recorded in advance. Id . The CW asked Snow for "five for eighty"-i.e., five twenty dollar bags of crack cocaine for eighty dollars-and gave Snow the buy money. Id . Snow removed three plastic bags of crack cocaine from inside his mouth and handed them to the CW. Id . Snow then directed another individual to give the CW the remaining two bags. Id . When the transaction was complete, the CW asked Snow for his name and telephone number, which Snow provided, and asked about the availability of an "8-ball." Id . Snow agreed to a price of $150.00 and the CW told Snow that he would call Snow in the future. Id . The CW then surrendered the five bags to detectives who sent them to the lab for testing. D. 40 at 16. Law enforcement monitored the transaction on video feed and via electronic transmission. D. 146-1. The reporting officers recognized the substance inside the five bags as cocaine. Id.
On August 29, 2011, the substance contained in one of the five plastic bags from the controlled buy was tested at the William A. Hinton State Laboratory Institute ("Hinton Lab") and determined to be.16 grams of cocaine. D. 53-1. Hevis Lleshi was the primary chemist and Dan Renczkowski was the confirmatory chemist. Id.
A grand jury entered a one-count indictment charging Snow with distribution of cocaine in a school zone in violation of 21 U.S.C. §§ 841(a)(1), 860 on September 8, 2011. D. 1. Snow pleaded guilty to the charge on January 5, 2012, D. 19 at 1, and was sentenced to 24 months imprisonment and six years of supervised release. D. 53 at 1. He subsequently filed his § 2255 petition upon learning about Dookhan's misconduct at the Hinton Lab. D. 53. He contends that he is entitled to relief because his guilty plea was not knowing, voluntary and intelligent because he was unaware of this misconduct at the time of his plea.
A. Applicable Standard under Ferrara
Under the circumstances presented here, a collateral attack on a conviction based upon an allegedly involuntary guilty plea is governed by the two-prong test articulated by the First Circuit in Ferrara. To establish that a 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." Id. at 290 (citing Brady v. United States, 397 U.S. 742, 755 (1970)). Inquiring into the elements of this two-part test requires the court to consider the totality of the circumstances surrounding the plea. Id.
Under the first prong, a petitioner must show "some particularly pernicious form of impermissible conduct." Id. at 291. Under the second prong, he must show a "reasonable probability" that, but for the misconduct, he would not have entered a guilty plea and would have insisted on going to trial. Id. at 294 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). This showing is met if a petitioner demonstrates a probability "sufficient to undermine confidence in a belief that the petitioner would have entered a plea." Id . It is an objective standard that governs whether a reasonable probability exists-the elementary question is "whether a reasonable defendant standing in petitioner's shoes would likely have altered his decision to plead guilty." Id . (citation omitted). Several factors are instructive in this analysis, including, but not limited to:
(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 ...