Habeas 3-12-2015 Letter Justifying Amendment Habeas

ELIZABETH T. FOSTER, ATTORNEY AT LAW, LLC 22 E. Quackenbush Ave., Dumont, NJ 07628

201 290 5761 ph 201 215 9574 fax [email protected]

March 12, 2015 Hon. William Martini, U.S.D.J. United States District Court 50 Walnut Street Newark, NJ 07101 Via ecf Re: Habeas Petition of David Connolly, 2:14cv3574 Dear Judge Martini: I represent petitioner in this matter. Your Honor has directed that petitioner provide a letter detailing the reasons why he should be permitted to file an amended habeas petition.

1. The Court Should Grant the Request to Amend the Habeas Petition because it Arises out of the Same Set of Facts as the Original Petition: Sixth Amendment Violation, Ineffective Assistance of Counsel.

Since petitioner filed his habeas petition at the end of the one year period, he is not entitled to the broad legal standard for amendment that (i.e. that amendment should be freely granted) would otherwise govern. Instead, the amendment must be based on the same conduct transaction, or occurrence. in Mayle v. Felix, 545 U.S. 644 (2005), the Court severely restricted the definition of conduct, transaction, or occurrence to mean that the proposed claim must be tied to a "common core of operative facts" as a claim set forth in the original petition. Mayle, 545 U.S. at 659. Looked at another way, a proposed amendment 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, 545 U.S. at 657. Here, the petitioner bases his request to amend the habeas petition on a common core of operative facts: his attorney, Gerald Salutis ineffective assistance of counsel.

2. By Deciding to Prosecute Connolly, the Government Targeted a Victim, not a Player

Connolly chose a career in real estate. His companies bought apartment buildings, sometimes in bad shape, and turned them around to create better real estate investments and properties for residents. By late 2008-early 2009, the real estate bubble in America had burst, leaving the victims, who were formerly riding high, crashed on the ground. As

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a real estate investor, Connolly was victimized by the wrongdoing of the big banks, whose criminal behavior went largely unpunished. http://open.salon.com/blog/sickofstupid/2011/10/20/how_to_make_trillions_commit_fraud_crash_the_economy Many real estate investors who sank their money into the Connolly business lost money, big money, and blamed Connolly. It is wildly foolish to believe that Connolly would defraud his investors and himself. Instead, the Connolly business was a bit of driftwood caught in the tsunami of the debt crisis. After losing their shirts, Connollys investors wanted someone to blame, and the government gave them Connolly. The true fraudsters, the mega banks, were apparently not on the governments radar. Importantly, Connolly lost more wealth than the other investors. This negates the notion of a scheme to defraud. 1See United States v. Prows, 118 F.3d 686, 692 (10th Cir. 1997) (Intent to defraud may be inferred from whether the defendant profited or converted money to his own use. (quoting Kathleen Flavin & Kathleen Corrigan, Eleventh Survey of White Collar Crime: Mail Fraud and Wire Fraud, 33 Am. Crim. L. Rev. 861, 86970 (1996))).

3. Securities Fraud is an Inappropriate Charge The government chose securities fraud as the way to punish Connolly, but Connolly did not believe he was dealing in securities, nor did he run his business in this way. Therefore, his wrongdoing cannot be willful, and the U.S. Attorney should not have prosecuted him. United States v. OHagan, 521 U.S. 642 (1997). In the superseding indictment, the government alleges that petitioner bilked his investors out of money by lying to them to obtain money. Petitioner denies this. The government knows it has stretched the facts since Connollys business was not soliciting any funds in 2009. Deliberate false statements by those privileged to represent the United States harm the trial process and the integrity of our prosecutorial system. United States v. Reyes, 660 F.3d 451 (9th Cir. 2009).

4. The Government Was Inappropriately Reaching and Cannot Prove Connolly made knowingly false statements in an effort to defraud investors.

As an example, the government claims that Connolly told investors he would purchase the Marshall Woods property but he failed to complete that purchase. The reason for this was not deception at all as the government wrongly claims. Rather, during the due diligence period, Connolly discovered the property was suffering from vacancy problems and the price he was paying was too high, and he was unable to get the seller to adjust the price. In 2009 when the real estate values were changing rapidly, this can hardly be considered fraud, as it must be in order 1 Of course, the scheme to defraud is a necessary element of the money laundering charge as well, since it would have produced the illicit funds that required laundering. There were no such illicit funds, only financial losses, so the money laundering charge is without a basis and also improper.


for the government to prevail. This, instead, is just business. Deals fall through when properties lose value. This does not imply that the purported buyer was lying to his investors, it only means that the deal could not go through as planned because the assumptions on which the deal was premised turned out not to be true.

5. Saluti Had an Impossible Conflict of Interest A fundamental tenet of the American justice system is that cases must be decided on facts. It is also said that the criminal justice system relies on plea bargaining to deal with the volume of cases that it must handle. Here, the government simply did not care whether the facts about Connollys charges had any truth to them at all. The government was seeking a conviction. Gerald Saluti served it up for them in the form of a plea agreement that he failed even to read, let alone negotiate. David Connolly paid the price. All this would be acceptable if David Connolly knew what was going on and approved it. However, he did not know. Saluti, charged with the solemn duty of representing Connollys best interests, utterly failed in that regard. Instead, Saluti suffered from a conflict of interest. He directly profited by David Connollys confinement because he converted Connollys tax refund for his own use, wrongfully keeping some $75,000. He ignored Connollys phone calls, avoided meetings, and made promises he had no intention or ability to keep. 2 Saluti instructed Connolly to sign a consent order with SEC but never gave him a copy and promised to return in a couple of weeks with U.S. attorneys in tow who would offer a deal. Saluti and his paralegal Iannacone constantly told Connolly that they would be making proffers of information valuable to the government and that these proffers would prevent Connolly from spending even a day in jail. Saluti even promised to make proffers to the government on Connollys behalf after Connolly was sentenced. This cut into the sixty day period petitioner had to make his appeal. It is Salutis modus operandi to lie to clients to get them to sign away their rights, and in this regard, Connolly was no different from Salutis other client victims. Indeed the dockets of the federal courts bear witness to other defendants who have charged ineffective assistance against Saluti. 3 See Washington v. United States, No. 13cv360 (E.D.N.Y. Dec. 30, 2014) available at http://leagle.com/decision/In%20FDCO%2020141231B71/WASHINGTON%20v.%20U.S; see also http://www.mtv.com/news/1642575/max-b-talks-from-jail-about-appealing-75-year-sentence-ill-be-home/ (rap star represented by Saluti accuses him of ineffective assistance of counsel). Most recently in January of this year, Saluti was suspended by the NJ Supreme Court for one year for very serious infractions against clients including neglecting their cases, and overcharging them without performing legal services. The Supreme Courts review is utterly scathing. See Exhibit B, attached hereto. 2 See declaration of Donna X. Connolly, attached as Ex. A. 3 See ecf 19, filed March 11 (incorrectly filed on March 6) incorporated herein by reference.


Saluti told Connolly he would prepare a loss damages calculation offset, but that was never done. He constantly lied to Connolly and his lies were designed to distract Connolly from the fact that nothing was being done on his case, no investigation, no modifications to the PSR, no nothing. Petitioner believed Salutis lies that he would not serve a day in jail, and only have to be on probation. A defendant considering a plea has a right to be adequately informed of the risks and advantages of accepting a plea. United States v. Mohammed, 959 F. Supp. 1198m 1200 (N.D. Ill. 1998). Of course, Saluti had no choice but to try to force petitioner to accept the plea since he was completely unprepared for trial. Defense counsels failure to prepare equals ineffective assistance. United States ex rel. Washington v. Maroney, 428 F. 2d 10 (3d Cir. 1970). Saluti failed to do any work on the file, including reading the materials his own client gave him. Superficial investigation by counsel means that counsels performance was inadequate. White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005). See also United States v. Gray, 878 F.2d 702, 711 (3rd Cir. 1989) (the "failure to conduct any pretrial investigation generally constitutes a clear instance of ineffectiveness," because, "in the context of complete failure to investigate . . . [,] counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made." (citation omitted)). This pretrial investigation is mandatory, not optional, for an attorney to undertake: An attorney must engage in a reasonable amount of pretrial investigation andat a minimuminterview potential witnesses and make an independent investigation of the facts and circumstances in the case. Bryant v Scott, 28 F.3d 1411 (5th Cir. 1994). Saluti further advised petitioner not to say anything at the meeting with the probation officer. Of course, petitioner discovered later that it was important for him to speak since the purpose of that meeting was for him to tell his side of the story. Instead, it went untold. Because Saluti failed to object to the PSR, it essentially became fact despite that it is not, by any stretch of the imagination, at all accurate.

6. There is No Procedural Bar to Connollys Amended Habeas Petition The government may claim that petitioner cannot bring these ineffective-assistance-of-counsel claims because he brought no direct appeal. However, this is not the law. Rather, there is an exception to the procedural default rule. Once a petitioner has brought particular claims on a direct appeal, he may not re-litigate those claims in the context of a habeas petition. See Mui v. United States, 614 F.3d 50(2d Cir. 2010): Ineffective assistance of counsel claims brought for the first time on a habeas petition are not barred. We hold that a defendant who raises on direct appeal ineffective assistance claims based on the strategies, actions, or inactions of counsel that can be, and are, adjudicated on the merits on the trial record, is precluded from raising new or repetitive claims based on the same strategies, actions, or inactions in a Section 2255 proceeding. Since Connolly brought no direct appeal, this limitation does not apply to him.


7. Connolly brought his original habeas petition without an attorney.

Connolly had no counsel when he brought his original petition. A lawyer is necessary to navigate the maze of procedural regulations that inhere in habeas proceedings. The United States government has fine lawyers representing its interests. Our justice system breaks down when those who are wrongly accused lack the resources, including legal help, to fight back. One should not perform surgery on oneself, instead, one should procure the services of a physician. Likewise, one should not perform litigation without an attorney. Connolly was deeply prejudiced by his lack of counsel. Connolly knows about real estate, not securities law, and not criminal law. Conclusion The petitioner was wrongly charged by the government as the crimes with which he was charged do not fit the facts. The facts are that a real estate business was destroyed in an economic calamity that destroyed many real estate businesses and relieved many investors of their wealth. Then, petitioners attorney, rather than properly assist him, stole from him, lied to him and failed to represent him, causing a Sixth Amendment ineffective assistance of counsel violation. The court has the ability and the duty to grant habeas relief under such circumstances. Very truly yours, s/Elizabeth T. Foster Elizabeth T. Foster Attorney for Petr cc: Leslie Faye Schwartz, AUSA Attachments


Documents

Habeas 3-12-2015 Letter Justifying Amendment Habeas