Petition for Writ of Certiorari — Stanley Aron Cavienss, Petitioner v. United States

Case 20-3616, Document 78, 06/29/2021, 3127999, Pagel of 1

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on

the 29th day of June, two thousand twenty-one,

Present:

Guido Calabresi,

Steven J. Menashi,

Circuit Judges,

John G. Koeltl,*

District Judge.

Stanley Aron Cavienss,

ORDER

Docket No. 20-3616

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appellant filed a motion for reconsideration and the panel that determined the motion has

considered the request.

IT IS HEREBY ORDERED, that the motion is denied.

For The Court:

Catherine O'Hagan Wolfe,

Clerk of Court

Case 20-3616, Document 59, 04/07/2021, 3072767, Pagel of 1

D. Conn.

18-CV-1920

16-cr-l 14

Bolden, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 7th day of April, two thousand twenty-one.

Present:

Guido Calabresi,

Steven J. Menashi,

Circuit Judges,

John G. Koeltl,*

District Judge.

Stanley Aron Cavienss,

Petitioner-Appellant,

20-3616

v.

United States of America,

Respondent-Appellee.

Appellant, pro se, moves for a certificate of appealability, appointment of counsel, and other relief.

Upon due consideration, it is hereby ORDERED that the motions are DENIED and the appeal is

DISMISSED because Appellant has not “made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 327

(2003).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

* Judge John G. Koeltl, of the United States District Court for the Southern District of New

York, sitting by designation.

O

Case 20-3616, Document 82, 07/06/2021, 3131860, Pagel of 1

MANDATE

D. Conn.

18-cv-1920

16-cr-l 14

Bolden, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 7th day of April, two thousand twenty-one.

Present:

Guido Calabresi,

Steven J. Menashi,

Circuit Judges,

John G. Koeltl,*

District Judge.

Stanley Aron Cavienss,

Petitioner-Appellant,

20-3616

v.

United States of America,

Respondent-Appellee.

Appellant, pro se, moves for a certificate of appealability, appointment of counsel, and other relief.

Upon due consideration, it is hereby ORDERED that the motions are DENIED and the appeal is

DISMISSED because Appellant has not “made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 327

(2003).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

A True Copy

Catherine O’Hagan Wj

rk

United States Coui tpf Appeals,\Second Circuit

J S€C6ND \J

cmr

I

^

* Judge John G. Koeltl, of the United States District Court for the Southern District of New

York, sitting by designation.

MANDATE ISSUED ON 07/Q6/2021

Case 3:18-cv-01920-VAB Document 7 Filed 01/15/20 Page lot 9

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

STANLEY ARON CAVIENSS,

Plaintiff,

v.

No. 3:18-cv-1920 (VAB)

UNITED STATES OF AMERICA,

Defendant.

RULING AND ORDER ON MOTION TO

VACATE, SET ASIDE, OR CORRECT SENTENCE

Stanley Aron Cavienss (“Petitioner”), currently incarcerated at the United States

Penitentiary, Lewisburg, and proceeding pro se, filed a petition for writ of habeas corpus under

28 U.S.C. § 2255 challenging his conviction and sentence. Mot. to Vacate, Set Aside, or Correct

Sentence, ECF No. 1 (Nov. 9, 2018).

For the following reasons, Petitioner’s motion is DENIED.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. Indictment1

On June 7, 2016, Mr. Cavienss was indicted on charges of conspiracy to distribute and to

possess with intent to distribute 500 grams or more of cocaine (Count One); conspiracy to

distribute and to possess with intent to distribute heroin (Count Two); and the use, carrying, and

possession of a firearm during and in relation to and in furtherance of a drug trafficking felony

(Count Six). See Indictment, No. 3:16-cr-00114-6 (VAB), ECF No. 12 (June 7, 2016). Count

One carried a statutory mandatory minimum sentence of five years’ imprisonment and a

maximum sentence of 40 years’ imprisonment. 18 U.S.C. § 841(b)(1)(B). Count Two carried a

1 For the factual and procedural background of this case, the Court has relied on the related criminal matter, United

States v. Gutierrez el at., No. 3:16-cr-00114-6 (VAB).

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Case 3:18-cv-01920-VAB Document 7 Filed 01/15/20 Page 2 of 9

sentence of up to 20 years’ imprisonment. 18 U.S.C. § 841(b)(1)(C). Count Six carried a

statutory mandatory minimum of five years’ imprisonment, to be served consecutively to the

sentence for any other offense. See 18 U.S.C. § 924(c)(1)(A), (c)(1)(D) (providing that the

sentence under this section cannot “run concurrently with any other term of imprisonment

imposed on the person”).

On June 9, 2016, Mr. Cavienss initially entered a plea of not guilty on all counts. Minute

Entry, No. 3:16-cr-00114-6 (VAB), ECF No. 46 (June 9, 2016).

B. Guilty Plea and Attempt to Withdraw Guilty Plea

On July 13, 2016, the Court held a change of plea and motion hearing, where Mr.

Cavienss entered a plea of guilty on Counts One and Two. Minute Entry, No. 3:16~cr-00114-6

(VAB), ECF No. 102 (July 13, 2016). The same day, Mr. Cavienss entered into a plea agreement

with the Government. Plea Agreement, No. 3:16-cr-00114-6 (VAB), ECF No. 103 (July 13,

2016). Appearing before the Court at this hearing were Mr. Cavienss, his then-counsel Walter

Bansley, and Assistant U.S. Attorney Anthony Kaplan. See Plea Trans. 1, No. 3:16-cr-00114-6

(VAB), ECF No. 327-4 (June 1, 2017).

On November 10, 2016, the Court held a hearing in response to Mr. Cavienss’s motion

for Mr. Bansley to withdraw as his counsel, and for Dan LaBelle to replace him. See Minute

Entry, No. 3:16-cr-00114-6 (VAB), ECF No. 143 (Nov. 10, 2016). At this hearing, Mr. Cavienss

expressed an interest in withdrawing his guilty plea.

On February 14, 2017, Mr. Cavienss filed a motion to continue the sentencing, in part to

“investigate the possibility of filing a motion to withdraw the guilty plea.” See Mot. to Continue,

No. 3:16-cr-00114-6 (VAB), ECF No. 207 (Feb. 14, 2017).

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On March 15, 2017, the Court informed Mr. Cavienss that he should file a motion to

withdraw his guilty plea or a related notice within thirty days of receiving the change of plea

hearing transcript. Docket Entry, No. 3:16-cr-00114-6 (VAB), ECF No. 238 (Mar. 15, 2017).

On April 3, 2017, the transcript of the change of plea proceeding was filed on the docket.

Transcript, No. 3:16-cr-00114-6 (VAB), ECF No. 259 (Apr. 3, 2017).

On May 17, 2017, the Court noted that Mr. Cavienss had yet to file any motion to

withdraw his guilty plea or related notice and ordered that Mr. Cavienss file such a motion by

June 2, 2017. Order, No. 3:16-cr-00114-6 (VAB), ECF No. 320 (May 17, 2017).

On June 1, 2017, Mr. Cavienss filed a motion to withdraw his guilty plea. Mot. to

Withdraw Guilty Plea, No. 3:16-cr-00114-6 (VAB), ECF No. 327 (June 1, 2017).

On July 7, 2017, the Court held a hearing on Mr. Cavienss’s motion to withdraw his

guilty plea. Minute Entry, No. 3:16-cr-00114-6 (VAB), ECF No. 345 (July 7, 2017).

On July 10, 2017, the Court denied Mr. Cavienss’s motion to withdraw his guilty plea.

Order on Mot. to Withdraw Guilty Plea, No. 3:16-cr-00114-6 (VAB), ECF No. 344 (July 10,

2017) (“2017 Order”). The Court considered the following:

(1) whether the defendant has asserted his legal innocence in the

motion to withdraw the guilty plea; (2) the amount of time that has

elapsed between the plea and the motion (the longer the elapsed

time, the less likely withdrawal would be fair and just); and (3)

whether the government would be prejudiced by a withdrawal of the

plea,

United States v. Rosen, 409 F.3d 535, 546 (2d Cir. 2005), as well as (4) “whether the defendant

has raised a significant question about the voluntariness of the original plea,” id. (citing United

States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997)).

The Court found that (1) Mr. Cavienss did not assert his legal innocence, see Mot. to

Withdraw Guilty Plea, No. 3:16-cr-00114-6 (VAB), ECF No. 327-1 at 1 (noting that Mr.

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Cavienss “is not asserting his legal innocence as the basis for withdrawing his plea”); (2) the

elapsed time between Mr. Cavienss’s guilty plea and motion for withdrawal weighed against

allowing the withdrawal; (3) the Government would be prejudiced; and (4) Mr. Cavienss did not

raise a significant question about the voluntariness of his guilty plea, especially because he was

not asserting his legal innocence. 2017 Order at 8-12.

Accordingly, the Court found that Mr. Cavienss did not meet his burden to demonstrate

“a fair and just reason” for requesting the withdrawal of his guilty plea. Id. at 6; see also id. at 12

(“To the extent that [Mr. Cavienss] now represents that he had ‘a change of heart,’ it ‘is not a

sufficient reason to permit withdrawal of [his] plea[,}’ ... especially if that change of heart is not

connected to a viable claim of legal innocence.” (quoting United States v. Gonzalez, 970 F.2d

1095, 1100 (2d Cir. 1992))).

C. Sentencing

The Court granted several of Mr. Cavienss’s motions to continue sentencing until a later

date. Docket Entries, No. 3:16-cr-00114-6 (VAB), ECF Nos. 379, 389, 396, 399, 419.

Before the sentencing hearing, the Court considered the parties’ filings and the U.S.

Probation Office’s Presentence Report. Sent. Mem., No. 3:16-cr-00114-6 (VAB), ECF Nos. 397,

420 (Jan. 16, 2018; Mar. 5, 2018); Gov’t’s Sent. Mem., No. 3:16-cr-00114-6 (VAB), ECF Nos.

408, 421 (Jan. 26, 2018; Mar. 10, 2018); Presentence Investigation Report, No. 3:16-cr-00114-6

(VAB), ECF No. 376 (Sept. 29, 2017).

On April 27, 2018, the Court held a sentencing hearing, and granted the Government’s

oral motion to dismiss Count 6 as to Mr. Cavienss. Minute Entry, No. 3:16-cr-00114-6 (VAB),

ECF No. 428 (Apr. 27, 2018). At sentencing, the Court found Mr. Cavienss to be safety valve

eligible under 18 U.S.C. § 3553(f) andU.S.S.G. §§ 2Dl.l(b)(17) and 5C1.2, which made

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inapplicable the mandatory minimums in this case. Sent. Tr., No. 3:16-cr-00114-6 (VAB), ECF

No. 433 at 21:9-23-6 (Apr. 27, 2018). The Court next found that Mr. Cavienss’s adjusted offense

level was 30 and his criminal history category was I, id. at 28:9-10, which resulted in a guideline

sentencing range of 97 to 121 months of imprisonment; one to five years of supervised release; a

fine of $30,000 to $300,000; and a mandatory special assessment of $200, id. at 28:11-14.

The Court sentenced Mr. Cavienss to thirty months of imprisonment for Counts One and

Two, to be served concurrently; a three-year term of supervised release; and a special assessment

of $200. Judgment, No. 3:16-cr-00114-6 (VAB), ECF No. 429 (May 11, 2018). The Court

ordered Mr. Cavienss to self-surrender on June 8, 2018, id., and later entered a forfeiture order as

to approximately $98,230 and one dock, .40 caliber semi-automatic pistol, bearing serial

4VF116, seized on or about April 21, 2016, Order of Forfeiture, No. 3:16-cr-00114-6 (VAB),

ECF No. 426 at 1 (May 1, 2018).

On June 8, 2018, the Government filed an appeal, Notice of Appeal, No. 3:16-cr-00114-6

(VAB), ECF No. 439 (June 8, 2018); but later withdrew it, Mandate of USCA re Withdrawal of

Appeal, No. 3:16-cr-00114-6 (VAB), ECF No. 441 (June 21, 2018).

D. Attempts for Relief from Conviction and Sentence

On May 15, 2017, after Mr. Cavienss had already pled guilty and before filing a motion

to withdraw his guilty plea, Mr. Cavienss filed a civil rights complaint against the United States

of America, C.T D.E.A. F.B.I., and the Martin County Sheriffs Office in Florida. Compl., No.

3:17-cv-00789 (VAB), ECF No. 1 (May 15, 2017). That case has a pending motion for

disposition on the merits, which raises many of the same arguments as the current motion. Mot.

for Disposition on the Merits, No. 3:17-cv-00789 (VAB), ECF No. 18 (Apr. 15, 2019).

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On November 9, 2018, Mr. Cavienss filed a motion to vacate, set aside, or correct his

sentence under 18 U.S.C. § 2255 in this case. Mot. to Vacate, Set Aside, or Correct Sentence,

ECF No. 1 (Nov. 9, 2018) (“Mot.”).

II.

STANDARD OF REVIEW

A federal prisoner challenging a criminal sentence may do so under 28 U.S.C. § 2255

“where the sentence (1) was imposed in violation of the U.S. Constitution or the laws of the

United States; or (2) was entered by a court without jurisdiction to impose the sentence; or (3)

exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral

attack.” Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004).

Section 2255 provides that a district court should grant a hearing “[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28

U.S.C. § 2255(b). District courts, however, may “exercise their common sense,” Machibroda v.

United States, 368 U.S. 487, 495 (1962); and may draw upon personal knowledge and

recollection of the case, see Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1997); United States v.

Aiello, 900 F.2d 528, 534 (2d Cir. 1990). “Thus, a § 2255 petition may be dismissed without a

hearing if, after a review of the record, the court determines that the allegations are insufficient

as a matter of law.” Gonzalez-Gonzalez v. United States, No. 3:14-cv-672 (AWT), 2017 WL

1364580, at *2 (D. Conn. Apr. 13, 2017).

With pro se litigants, this Court must liberally construe their filings to raise the “strongest

arguments it suggests.” Triestman v. Fed. Bureau ofPrisons, 470 F.3d 471, 474 (2d Cir. 2006);

see also Sykes v. Bank ofAm., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman, 470 F.3d at

474).

III.

DISCUSSION

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Mr. Cavienss raises several grounds to challenge his sentence and conviction. The Court

construes Mr. Cavienss to be raising the following constitutional violations: (1) the Fourth

Amendment’s ban on unreasonable searches and seizures; (2) the prohibitions on ex postfacto

laws in Article 1, Section §§9-10; (3) the Third Amendment; (4) ineffective assistance of

counsel with respect to his first court-appointed counsel, Mr. Water Bansley; (5) the Fifth

Amendment; and (6) the Sixth Amendment. Mot. at 1-9. He also raises a claim under the Magna

Carta. Id. Essentially, Mr. Cavienss argues that “when one Constitution law is broken they all are

broken.” Id. at 9.

All of Mr. Cavienss’s arguments fail for three reasons.

First, any arguments related to the actions that led to his conviction, including arguments

related to the lawfulness of the traffic stop where he was intercepted with a gun and large

amounts of cash, already have been waived.2 See United States v. Turner, No. 98-1213, 1999

U.S. App. LEXIS 4767, at *4 (2d Cir. Mar. 19, 1999) (unpublished summary order) (affirming

district court’s denial of petitioner’s prior motion to withdraw his guilty plea, because his “sworn

statements to the District Court during his plea allocution clearly indicate that his plea was both

2 The Government provided extensive evidence of Mr. Cavienss’s involvement in the drug conspiracy, including

Mr. Cavienss’s interception in approximately 135 communications over the course of electronic surveillance.

Gov’t’s Sent. Mem., No. 3: 16-cr-00114 (VAB), ECF No. 408 at 3 n.l (Jan. 26,2018). As Assistant U.S. Attorney

Kaplan noted at Mr. Cavienss’s sentencing:

[T]here were a number of [recordings of Mr. Cavienss’s conversations] that

reflected Mr. Cavienss well knew that he was going down to Florida to pick up

cocaine, and there were calls that indicated that he knew that he was in trouble

when the police seized the gun and the money.

There were multiple calls, your Honor, where Mr. Cavienss was intercepted on

both cocaine and heroin. Again, that’s a window into his thinking and into his

cognitive abilities, and those reflected absolutely no issues about that [sic] he

knew what he was doing and, frankly, that he knew what he was doing was wrong.

Sent. Tr., ECF No. 433 at 13:19-24.

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knowing and voluntary,” and finding that petitioners “present protestations are simply

insufficient to undermine” his prior sworn statements); see also Padin v. United States, 521 Fed.

Appx. 36, 38 (2d. Cir. 2013) (affirming district court and finding that there was “a sufficient

evidentiary record to permit the district court to reject, without a full testimonial hearing,”

petitioner’s claim of ineffective assistance of counsel, because the petitioner “entered a guilty

plea” and “received a sentence at the low end of the Guidelines range”).

Mr. Cavienss pled guilty to his crimes of conviction—one count of conspiracy to

distribute and possess with intent to distribute 500 grams or more of cocaine, 21 U.S.C. §§ 846

and 841(b)(1)(B), and one count of conspiracy to distribute and possess with intent to distribute

heroin, 21 U.S.C. §§ 846 and 841(b)(1)(C)—which undermines his claims of innocence and

challenges of his conviction. Plea Agreement, No. 3:16-cr-00014-6 (VAB), ECF No. 103. And

the Court accepted his guilty plea. Minute Entry, No..3:16-cr-00014-6 (VAB), ECF No. 102.

Second, to the extent that Mr. Cavienss argues that his guilty plea was invalid, the Court

has already addressed and rejected those arguments in a prior ruling and order. See 2017 Order

(denying Mr. Cavienss’s motion to withdraw his guilty plea).

Third, to the extent that Mr. Cavienss argues that his sentence was unlawful, the Court

notes that while the sentencing guideline range for Mr. Cavienss was 97-121 months of

imprisonment, the Court sentenced him to thirty (30) months imprisonment for Counts One and

Two, to be served concurrently. Compare Judgment, No. 3:16-cr-00114-6 (VAB), ECF No. 429

(May 11, 2018), with Sent. Tr., No. 3:16-cr-00114-6 (VAB), ECF No. 433 at 28:9-14 (reciting

the sentencing guideline calculations). Indeed, rather than impose the mandatory minimum

sentence, the Court found Mr. Cavienss to be safety valve eligible3 under 18 U.S.C. § 3553(f)

3 At sentencing, the Court stated:

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and U.S.S.G. §§ 2Dl.l(b)(17) and 5C1.2. Sent Tr.,No. 3:16-cr-00114-6 (VAB), ECF No. 433 at

21:9-23-6. See United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (“[I]n the

overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad

range of sentences that would be reasonable in the particular circumstances. It is therefore

difficult to find that a below-Guidelines sentence is unreasonable.” (internal citation and

quotation marks omitted)); United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)

(explaining that a criminal sentence is substantively unreasonable only in “exceptional cases”

where it “cannot be located within the range of permissible decisions” (internal quotation marks

omitted)).

As a result, all of Mr. Cavienss’s arguments challenging his sentence and conviction are

rejected.

IV.

CONCLUSION

For the reasons explained above, the Court DENIES Mr. Cavienss’s motion.

The Clerk of Court is respectfully directed to close this case.

SO ORDERED at Bridgeport, Connecticut, this 15th of January, 2020.

Is/ Victor A. Bolden

Victor A. Bolden

United States District Judge

As I have said earlier, I did make you safety valve eligible. And as I said, this

was a very challenging case, and I think it is a very, very rare exception given

some of the issues that you have personally, and it is one of the reasons I would,

or even could, consider applying it, and I did because I do think for you

individually the ability to reconcile having the gun and the drug crime is a very

hard thing for you to do, and I think that's essentially what a criminal sentence

requires.

Sent. Tr., No. 3:16-cr-00114-6 (VAB), ECF No. 433 at 44:13-23.

9

Additional material

from this filing is

available in the

Clerk's Office.