Tellado v. United States
799 F. Supp. 2d 156
D. Conn.2011Background
- Petitioner Shawn Tellado seeks § 2255 relief challenging his 2007 sentence as a career offender for conspiracy to possess with intent to distribute and distribute 500+ grams of cocaine.
- Tellado's career-offender designation rested on two Connecticut state convictions under § 21a-277(a)/(b), each arising from Alford pleas and not subject to a direct admission of the factual basis.
- Savage v. United States (2d Cir. 2008) held that a Connecticut § 21a-277(b) conviction obtained via an Alford plea does not automatically qualify as a controlled substance offense under U.S.S.G. § 4131.2(b) unless the defendant pleaded to facts necessarily showing distribution.
- Tellado did not appeal his sentence, which became final in September 2007; AEDPA gave a one-year clock, expiring September 2008.
- Tellado filed his § 2255 petition in September 2009, arguing Savage retroactively applies and would reduce his offense level and total sentence, potentially to 92–115 months.
- The government contends the petition is untimely and barred by Tellado’s waiver in the plea agreement, which prohibits collaterally attacking the sentence if it does not exceed 188 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of § 2255 petition | Tellado asserts Savage creates a new fact triggering § 2255(f)(4) or otherwise warrants tolling. | Government argues petition untimely under AEDPA and no tolling applies. | Petition denied as time-barred; no equitable tolling or new factual predicate saved timely filing. |
| Retroactivity of Savage and its effect on sentence | Savage retroactively changes the predicate offenses, potentially lowering the guideline range. | Savage is not a new fact; even if retroactive, finality concerns remain. | Savage does not establish a new factual predicate under § 2255(f)(4); no relief on retroactivity. |
| Equitable tolling and extraordinary circumstances | Incarceration and unavailability of Savage constitute extraordinary circumstances entitling tolling. | No extraordinary circumstance; lack of diligence defeats tolling. | No equitable tolling; Tellado failed to show due diligence or extraordinary obstacles warranting tolling. |
| Waiver of collateral attack rights in plea agreement | Waiver should be unenforceable if Tellado is actually innocent or if Rule 11 error occurred. | Waiver is valid and enforceable; Rule 11 error, if any, did not render waiver involuntary or unknowing. | Waiver of collateral attack rights valid and enforceable; no basis to invalidate per Rule 11 or actual innocence claims. |
| Actual innocence defense to AEDPA bar | Actual innocence of being a career offender could excuse tardy filing or tolling. | Tellado cannot show actual innocence of the predicate conduct; Poindexter controls. | No credible actual-innocence showing; cannot toll or circumvent time bar. |
Key Cases Cited
- United States v. Savage, 542 F.3d 959 (2d Cir. 2008) (Alford plea predicate not a controlled substance offense unless necessarily pleaded to distribution)
- Teague v. Lane, 486 U.S. 153 (Supreme Court) (retroactivity framework for new rules on collateral review)
- Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004) (actual innocence gateway requires new reliable evidence)
- Poindexter v. Nash, 333 F.3d 372 (2d Cir. 2003) (actual innocence not available for misclassification as career offender)
- Dominguez Benitez v. United States, 542 U.S. 74 (Supreme Court) (plain-error review; standard for Rule 11 violations and waivers)
- United States v. Roque, 421 F.3d 118 (2d Cir. 2005) (enforceability of plea waivers of collateral attack rights)
- United States v. Vonn, 535 U.S. 55 (Supreme Court) (plain-error standard for unpreserved Rule 11 errors)