Case 2:14-cv-03574-WJM Document 16 Filed 02/13/15 Page 1 of 3 PageID: 126

U.S. Department of Justice

United States Attorney

District of New Jersey

970 Broad Street, Suite 700

Newark, NJ 07102

(973)645-2700

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)