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U.S. Department of Justice

United States Attorney District of New Jersey

970 Broad Street, Suite 700 (973)645-2700 Newark, NJ 07102

February 13, 2015 Honorable William J. Martini Martin Luther King, Jr. Federal Building & U.S. Courthouse 50 Walnut Street Newark, New Jersey 07102

Re: David Connolly v. United States Civil No. 14-3574 (WJM) ELECTRONICALLY FILED Dear Judge Martini:

Please consider this letter on behalf of the Government in response to the February 9, 2015 letter of Elizabeth Foster, Esq., counsel for David Connolly, in the above petition for relief pursuant to Section 2255. In her letter, Ms. Foster requests the following: 1) additional time to obtain and review the case file from prior counsel; 2) the right to amend the petition previously formally accepted for filing by the Clerks Office on or about August 29, 2014, and 3) alternatively, permission for the petitioner to withdraw his Section 2255 petition without prejudice. Please be advised that the government opposes these requests.

On or about June 4, 2014, Connolly filed a pro se brief in support of a Section

2255 petition in which he claimed that 1) Counts One and Ten of the superseding indictment to which he had pleaded guilty failed to state a cause of action; and 2) that his attorney had provided ineffective assistance of counsel by failing to move to dismiss the indictment instead of counseling him to plead guilty to conduct that was not properly charged.

On or about July 15, 2014, the Clerk of the District Court administratively

terminated Connollys petition because he failed to use the proper form. The Clerks Office further advised Connolly that he had thirty days to reopen the case by filing the correct form. On or about August 13, 2014, Connolly filed a Section 2255 petition on the form supplied by the Clerk alleging the same grounds as in the brief

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filed on June 4, 2014. On or about August 29, 2014, the Clerks Office reopened Connollys Section 2255 civil case. On or about October 25, 2014, the Government filed an Answer to petitioner Connollys Section 2255 petition. On or about December 2, 2014, petitioner Connolly requested an additional thirty days to file a response to the Governments Answer.

On or about January 4, 2015, Ms. Foster filed a Notice of Appearance on behalf

of petitioner Connolly. Two days later, Ms. Foster filed a request for an additional extension of time to file a reply. On or about January 9, 2015, this Court entered an order granting petitioner until February 6, 2015 to serve a reply which responds to defenses and arguments raised in the Answer. No reply was filed by February 6, 2015. Instead, on February 9, 2015, Ms. Foster filed another letter requesting additional time to review the prior attorneys file and the right to amend the claims asserted in the pending Section 2255 petition.

This Court should deny Ms. Fosters requests. In her February 9, 2015 letter,

she proffers no explanation why she needs to review prior counsels file in order to reply to the Governments Answer. Notably, the claims in the pending Section 2255 petition (which were not raised in district court or on direct appeal) focused on the adequacy of the charging language contained in the two counts to which the defendant pleaded guilty and counsels failure to move to dismiss the indictment due to this alleged insufficiency. These procedurally defaulted claims are legal issues that do not require any additional factual investigation. Either the subject counts failed to properly allege the essential elements of securities fraud and money laundering, or they did not.

Moreover, this Court does not have sufficient information to address Ms.

Fosters request to file an amended petition. The one-year period of time to file a petition for Section 2255 relief has expired. A claim raised in a motion to amend a Section 2255 motion filed after the expiration of the one year period is considered to have been filed within the one year period only if the claim relates back to the petitioners original Section 2255 petition. See Mayle v. Felix, 125 S.Ct. 2562, 2569 (2005); Fed. R. Civ. P. 15 (c). An amended habeas petition does not relate back . . . when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth. Mayle, 125 S.Ct. at 2566. As Ms. Foster has failed to specify the precise nature of any amendment that she seeks with respect to the present petition, her request to augment the pending petition cannot be properly evaluated at this time.

This Court should also deny Ms. Fosters alternative request that this Court

allow petitioner to withdraw his petition without prejudice. Petitioner cannot avoid the one-year period of limitations in this manner. As previously stated, any new petition would be untimely as it would be filed more than one year after Connollys judgment of conviction became final on June 20, 2013. Further, petitioner cannot

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avoid the one year time period by simply alleging his actual innocence, he must establish it. Actual innocence means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). Moreover, where where the government dropped charges that were more serious or as serious as the charges to which the defendant pleaded guilty (as herein), the defendants burden is to establish factual innocence of the forgone charges as well. Bousley, U.S. at 624. At this juncture, Connolly has failed to claim in his petition, let alone establish, his factual innocence to the securities fraud and money laundering counts to which he pleaded guilty and the wire fraud and mail fraud counts which were dismissed as part of his plea.

For all the foregoing reasons, the requests set forth in Ms. Fosters Feb. 9, 2015

letter should be denied.

Respectfully submitted, PAUL J. FISHMAN United States Attorney

/s Leslie F. Schwartz By: LESLIE FAYE SCHWARTZ Assistant U.S. Attorney

cc: Elizabeth Foster, Esq. (by ECF and e-mail)

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