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UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
DAVID CONNOLLY,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent

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Civ. No. 14-3574 (WJM)

Crim. No. 12-343 (WJM)
Hon. William J. Martini
ANSWER

The United States of America, through Paul J. Fishman, United States

Attorney for the District of New Jersey (Leslie Faye Schwartz, Assistant U.S.
Attorney, appearing) responds to the allegations in petitioner David Connollys
pro se motion to vacate, set aside, or correct his sentence, pursuant to 28
U.S.C. 2255, and herein states:
1.

The United States admits the statements of the procedural history

of this matter contained in paragraphs 1 through 11 of petitioners Motion

Under 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (2255 Petition).
2.

The United States denies the allegations set forth in Grounds One

and Two of paragraph 12 of the 2255 Petition.

3.

The United States denies the statement in paragraph 13 of the

2255 petition that there are no grounds alleged in the petition that were not
previously presented in federal court. Neither Ground One nor Ground Two
were raised in the district court before or during the plea hearing. Further, as

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no direct appeal was filed, neither of these grounds were raised on direct
appeal.
4.

The United States admits the allegation set forth in paragraph 14

that there are no other motions, petitions, or appeals now pending in any other
court.
5.

The United States admits the allegations set forth in paragraph 15,

except to state that Richard Roberts, Esq., who at that time was associated
with the Saluti Law Group, represented the defendant at the plea hearing.
6.

The United States admits the allegations set forth in paragraphs 16

and 17 of the 2255 Petition.

STATEMENT OF FACTS AND CASE
From 1996 through January 2009, defendant David Connolly ran a
multi-million dollar Ponzi scheme disguised as a real estate investment
business. (PSR 19; 25). Defendant solicited capital contributions from
friends and family, and later from an expanding pool of investor victims, and
used the money to buy rental apartment buildings in New Jersey and
Pennsylvania. (PSR 24). He paid distributions to the investors, purportedly
from the cash returns the buildings generated. (PSR 24).
Over the years, defendant solicited investors for approximately thirty real
estate investment deals, including investors from New Jersey, Florida, and
Pennsylvania. In general, the defendant personally prepared an Offering
Prospectus that described a property and an investment opportunity. The
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prospectuses described the building, the number of shares available for

purchase, and the ownership structure. Typically, defendant set up an LLC or
limited partnership to own the building and a trust to be the non-managing
member or limited partner. The investors were the beneficiaries of the trust.
Defendant acted as trustee. Connolly Properties, Inc. (CPI), another company
owned by defendant, was the property manager for the buildings. The
prospectuses also contained rudimentary financial projections showing
revenues, expenses, and returns. Cash returns were typically shown to be 12%
per year or more. (PSR 23, 25).
For each investment entity he set up, defendant kept a number of shares
for himself as his management fee. He then paid himself per share
distributions for each investment, along with the rest of the investor victims.
The amount defendant Connolly paid himself added up over time to almost
$600,000 in 2006, more than $650,000 in 2007, more than $700,000 in 2008,
and almost $300,000 in 2009. (PSR 26).
The investment entities were designed to be separate entities and the
investor victims were informed that each would have separate accounts and
would be separately managed and financially independent. Instead, however,
defendant commingled investor funds, generally using a single master
account to receive revenues and pay expenses for all the buildings. (PSR
27).
Beginning in early 2006, or possibly earlier, defendant knew that many
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of the investment entities failed to generate sufficient income to pay their

expenses, including their mortgage obligations, and distributions to the
investor victims. Defendant Connolly knew that the businesses could not
support distributions to the investor victims at the level that he had been
paying. However, defendant continued to pay himself, and the investor victims,
monthly distributions even though doing so caused negative cash flow at many
of the investment entities. (PSR 28).
To make up for the negative cash flows, defendant commingled revenues
from the separate investment entities and investor capital contributions, and
used all available money to pay mortgages, expenses, and investor
distributions. Despite the financial problems of the investment entities,
defendant repeatedly assured the investor victims that the business was in
good shape and performing well financially. (PSR 29). He blamed missed
payments on errors by his bank, and lied about vacancy rates, receipts, cash
reserves, and other aspects of the business. (PSR 30).
Defendant continued soliciting and accepting new investment
contributions up through March 2009, using the money to pay operating
expenses and distributions. (PSR 30). The misuse of the capital
contributions meant that defendant could not buy two properties for which he
had solicited contributions --- Marshall Woods, a residential apartment
building in Norristown, Pennsylvania and Hampshire Court, a residential
apartment building in Plainfield, New Jersey. (PSR 57-60). To cover up his
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misappropriation of the capital, defendant tried to give the investor victims part
of his interest in a real estate project called Hillside Valley that he had been
trying to develop in Allentown, Pennsylvania. (PSR 63-64).
When the scheme ran out of money in early 2009, defendant stopped
paying mortgages. (PSR 31). Within a matter of months, the entire scheme
collapsed, as the banks holding mortgages on the buildings pursued
foreclosure actions and the investment entities declared bankruptcy. The
investor victims suffered more than $18 million in losses from defendant
Connollys fraudulent conduct. (PSR 68-70).
On or about January 23, 2013, a fifteen count superseding indictment
was returned against Connolly. Count One charged Connolly with securities
fraud, in violation of 15 U.S.C. 77j(b) and 78ff(a), and Title 17, Code of
Federal Regulations, Section 240.10b-5. Counts Two through Seven charged
mail fraud, in violation of 18 U.S.C. 1341 and 2. Counts Eight and Nine
charged wire fraud, in violation of 18 U.S.C. 1343 and 2; and Counts 10
through 15 charged engaging in a monetary transaction in criminally derived
property greater than $10,000, in violation of 18 U.S.C. 1341, 1342, and 2.
On or about February 4, 2013, Connolly entered a guilty plea before this
Court to Counts One and Ten of the superseding indictment. Pursuant to the
plea agreement, the parties stipulated that 1) the offense involved losses
totaling more than $7 million but less than $20 million, and 2) that the offense
involved more than 50 victims but less than 250 victims, and that a forfeiture
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of $9.92 million was appropriate.

A sentencing hearing was held on June 5, 2013. This Court sentenced
Connolly to a term of imprisonment of 108 months on Count One, and to a
concurrent term of 60 months on Count Ten. The Court also ordered Connolly
to make restitution in the amount of $18,732,775 and to forfeit the sum of
$9.92 million. The judgment of conviction was entered on or about June 6,
2013. On or about October 21, 2013, following a motion by the United States,
the Court entered an amended judgment of conviction to correct a clerical
mistake in the Title & Section portion of the original judgment.
On or about June 4, 2014, Connolly filed a 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) 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 a completed and signed Section 2255 on the
form supplied by the Clerk. 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 filed on June 4, 2014. On or about August 29, 2014,
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the Clerks Office reopened Connollys Section 2255 civil case.

ARGUMENT
CONNOLLY=S CLAIM FOR COLLATERAL RELIEF MUST BE DENIED
BECAUSE HE HAS NOT BORNE HIS BURDEN OF DEMONSTRATING
LEGALLY SUFFICIENT JUSTIFICATION FOR HIS PROCEDURAL
DEFAULT.
Connollys original judgment of conviction was entered on June 6, 2013.
Connolly did not file a direct appeal and, therefore, his judgment of conviction
became final when his time for filing a direct appeal expired on or about June
20, 2013. See Fed. R. App. P. 4 (in a criminal case, the defendant has 14 days
to file a notice of appeal following the entry of the judgment). Connollys
Section 2255 petition was not formally accepted by the Clerks office until
August 29, 2014, which was past the one-year period of limitation permitted
by 28 U.S.C. 2255(f)(1)(one-year period of limitation runs from the date on
which the judgment of conviction becomes final). Nevertheless, since Connolly
initially attempted to file his petition within the one-year period of limitation,
the United States will not argue that the instant Section 2255 petition was filed
outside the permitted time frame.
Although Connolly=s motion pursuant to 28 U.S.C. ' 2255 is properly
before this Court, his claim for collateral relief must nevertheless be denied.
Connolly failed to raise his claims that Counts One and Ten of the superseding
indictment did not state a cause of action while he was before this Court, and
he likewise failed to raise that claim on direct appeal.
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[C]laims not raised on direct appeal ordinarily may not be raised on

collateral review. Massaro v. United States, 538 U.S. 500, 504 (203). This
doctrine is neither a statutory nor a constitutional requirement, but a judgemade rule adhered to by the courts to conserve judicial resources and to
respect the laws important interest in the finality of judgments. Id. at 16931694
In practice, the requirement that a claim be adequately preserved means
that the defendant must raise it at trial, whether by motion, objection, or
otherwise, and on direct appeal. See Murray v. Carrier, 477 U.S. 478, 490-492
(1986)(claim not raised no direct review is procedurally defaulted). Doing one
but not the other will not prevent the claim from being defaulted.
Federal courts will not review a procedurally defaulted claim on collateral
review unless the defendant can establish one of two circumstances: either (1)
cause for the default and actual prejudice from the error, or (2) that the Court=s
failure to consider the claim will result in a miscarriage of justice because the
defendant is Aactually innocent.@ Bousley v. United States, 523 U.S. 614, 622
(1998); Hodge v. United States, 554 F.3d 372, 378-79 (3d Cir. 2009). See also
United States v. Frady, 456 U.S. 152, 167 (1982).
In the instant case, Connolly has failed to establish any cause for his
failure to allege defects in the superseding indictment in the district court and
on direct appeal. Any defects in the charging language would have been
apparent from reading the allegedly defective pleading. Moreover, he has failed
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to allege any actual prejudice from the claimed error. Indeed, had Connolly
timely raised his objections below prior to his plea hearing, the United States
would have had the opportunity to remedy any perceived defects through a
second superseding indictment, or information.

Further, Connolly does not

contend that he is actually innocent of the charges in Counts One and Ten
but merely that the superseding indictment did not specify the charges in
sufficient detail to state a cause of action.
CONNOLLY=S CLAIM FOR COLLATERAL RELIEF MUST BE DENIED
BECAUSE HE HAS NOT DEMONSTRATED THAT HE IS ENTITLED TO
AN EXCEPTION FROM THE PROCEDURAL DEFAULT RULE BASED
UPON A JURISDICTIONAL DEFECT.
The procedural default rule is broadly applicable to all claims that could
have been (but were not) raised on direct review. In practice, however, courts
have treated two types of claims as generally not subject to this rule. The first
exception to the procedural default rule involves jurisdictional claims.
According to some courts of appeals, because jurisdictional questions cannot
be forfeited on direct appeal, they are also immune from procedural default on
collateral review. See e.g., Kelly v. United States, 29 F.3d 1107, 1113-1113 (7th
Cir. 1994); Harris v. United States, 149 F.3d 1304, 1307-1308 (11th Cir. 1998).
Connolly claims that the district court did not have jurisdiction to
impose a sentence upon him as the superseding indictment failed to allege
essential elements of the securities fraud and money laundering offenses
charged in Counts One and Ten. This argument must fail. First,
jurisdiction is a word of many, too many meanings, Steel Co. v. Citizens for
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a Better Environment, 523 U.S. 83, 90 (1998), and the notion that
jurisdictional claims cannot be defaulted is subject to abuse if the court
adopts an overly expansive definition of that term. In United States v. Cotton,
535 U.S. 625 (2002), the Supreme Court narrowly defined the term
jurisdiction to mean the courts statutory or jurisdictional power to
adjudicate the case. Cotton, 535 U.S. at 630 (quoting Steel Co., 523 U.S. at
89). Accordingly, any exception to the procedural default rule for
jurisdictional errors is limited to errors that actually affect the courts subject
matter jurisdiction its power to adjudicate a case. See. e.g., United States v.
Burch, 169 F.3d 666, 668 (10th Cir. 1999); see also United States v. Bjorkman,
270 F.3d 482, 490-491 (7th Cir. 2000)(district court judges always have
subject-matter jurisdiction based on any indictment purporting to charge a
violation of federal criminal law).
In United States v. Spinner, 180 F.3d 514 (3d Cir. 1999), the Third
Circuit found that the defendant, who did not object below, did not waive his
right to argue on appeal that the access device fraud to which he pleaded guilty
was jurisdictionally defective. The Spinner case is factually distinct from the
case at bar.

First, the late challenge in Spinner, arose on direct appeal rather

than on collateral review. Second, the indictment in Spinner completely failed

to allege an essential element of the crime, i.e, that the transactions affected
interstate commerce. As the Spinner court noted:
We are faced here not with a defendant who pleads guilty and then
wishes to challenge the facts that give rise to federal jurisdiction
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(such as an effect on interstate commerce), but with an indictment

that does not allege those facts. It is only in the former case that
courts have found jurisdictional challenges waived by a guilty plea.
180 F.3d at 516.1
In contrast, the superseding indictment herein alleged all the necessary
statutory elements of Counts One and Ten, and therefore this court had
subject matter jurisdiction.2 See United States v. Rubin, 743 F.3d 31 (2d Cir.
2014)(in order to invoke a district courts jurisdiction, an indictment need only
allege that a defendant committed a federal criminal offense at a stated time
and place in terms plainly tracking the language of the relevant statute);
United States v. Jacquez-Beltran, 326 F.3d 661, 662 n.1 (5th Cir. 2003)(to
confer subject matter jurisdiction upon a federal court, an indictment need
only charge a defendant with an offense against the United States in language
similar to that used by the relevant statute. ).3

Thus, Connollys procedural

Notably, in a concurring opinion in Spinner, Circuit Judge Wellford, stated that once a
defendant has pleaded guilty in a court which has jurisdiction of the subject matter and of the
defendant, the courts judgment cannot be assailed on the grounds that the government has
not met its burden of proving so-called jurisdictional facts. (cites omitted). Thus, even if the
government had failed to establish a connection to interstate commerce, the district court
would not have been deprived of jurisdiction to hear the case. 180 F.3d at 517.
1

The essential elements of securities fraud are: that the defendant engaged in a scheme to
defraud, that the defendant did so in connection with the purchase of sale of securities, in
connection with the purchase or sale of securities the defendant made use of any means or
instrumentality of interstate commerce, or of the mails, or of any facility of any national
securities exchange, and the defendant acted with the intent to defraud. See Federal Jury
Practice and Instructions, Kevin F. OMalley, Jay E. Grenig, Hon. William C. Lee (2014).

In United States v. Hediathy, 392 F.3d 580 (3d Cir. 2004), the Circuit Court found that the
court could hear, for the first time on appeal, a claim that an indictment failed to state an
offense [a non-jurisdictional challenge] based upon the language of Fed. R.Crim. P. 12(b)(3)(B).
Hedaithy did not concern, however, a first-time argument made during collateral review.
Therefore, it is inapposite to the instant Section 2255 petition. Moreover, the effect of
Hediathy, even in the direct appeal context, will be limited going forward as effective December
3

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default cannot be bypassed by arguing that there was a jurisdictional defect in

the indictment.
CONNOLLY=S CLAIM FOR COLLATERAL RELIEF MUST BE DENIED
BECAUSE HE HAS NOT DEMONSTRATED THAT HE IS ENTITLED TO
AN EXCEPTION FROM THE PROCEDURAL DEFAULT RULE BASED
UPON INEFFECTIVE ASSISTANCE OF HIS COUNSEL.
The second exception to the procedural default rule involves claims of
ineffective assistance of counsel. In Massaro, the Supreme Court concluded
that criminal defendants may raise ineffective assistance claims for the first
time during a Section 2255 proceeding. As the Massaro Court recognized,
such claims are rarely well-suited to adjudication on direct review because of
the need for further factual development. Id. at 1624-1625. Post-Massaro,
then, a prisoners failure to raise a claim of ineffective assistance of counsel on
direct appeal does not necessarily result in a procedural default.
Connolly has asserted that his counsel rendered ineffective assistance of
counsel when he recommended that Connolly agree to plead guilty to Counts
One and Ten of the indictment, each of which failed to state an offense against
the laws of the United States. See Connolly Section 2255 petition at p. 20.
Connolly bears the burden of establishing his counsels ineffectiveness. See
Smith v. Robbins, 528 U.S. 259, 285 (2000); Marshall v. Hendricks, 307 F.3d
36, 89 (3d Cir. 2002). To meet that burden, Connolly must satisfy the
Strickland two-prong test. First, Connolly must show that his counsels
1, 2014, Rule 12(b)(3) will explicitly provide that motions alleging non-jurisdictional defects in
the indictment, such as lack of specificity and failure to state an offense, must be made before
trial to be preserved.

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representation was not within the range of competence demanded of attorneys

in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56 (1985)(internal quotations
omitted). Second, Connolly must show prejudice i.e., that his counsels
deficiencies affected the outcome of the proceedings. Id. at 58-59. Thus,
Connolly has to demonstrate a reasonable probability that, but for counsels
errors, he would not have pleaded guilty and would have insisted on going to
trial. Premo v. Moore, 131 S.Ct. 733, 743 (2011)(quoting Hill, 474 U.S. at 59).
Connolly cannot satisfy either Strickland prong.
Under Stricklands first prong, Connolly must show that his counsels
performance was so deficient that it fell below an objective standard of
reasonableness under prevailing professional norms. Buehl v. Vaughn, 166
F.3d 163, 169 (3d Cir. 1999)(Alito, J.). This requires showing that counsel
made errors so serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment. Id. (quoting Strickland,
466 U.S. at 689.
Accordingly, this Courts review is highly deferential and it does not
second-guess counsels assistance. Premo, 131 S. Ct. at 740-41. To the
contrary, counsel should be strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment[.] Cullen v. Pinholster, 131 S. Ct. 1388, 1403
(2011)(quoting Strickland, 466 U.S. at 690). And strict adherence to the
Strickland standard is all the more essential when reviewing the choices an
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attorney made at the plea bargain stage. Premo, 131 S. Ct. at 741.
Connolly complains that his counsel convinced him to plead guilty to
Counts One and Ten of the superseding indictment which he asserts failed to
state a federal offense.

This contention lacks merit.

With respect to Count One which charged securities fraud, Connolly

claims that the indictment never made a single reference to a security. The
charging language of Count One, however, stated as follows:
From at least as early as in or about 2006 through in or about October
2009, in the District of New Jersey, and elsewhere, defendant

DAVID CONNOLLY,
by use of the means and instrumentalities of interstate commerce, the mails,
and facilities of national securities exchanges, directly and indirectly,
knowingly and willfully used manipulative and deceptive devices and
contrivances in contravention of Title 17, Code of Federal Regulations, Section
240.10b-5 (Rule 10b-5") in connection with the purchase and sale of
securities by (i) employing devices, schemes, and artifices to defraud members
of the investing public; (ii) making untrue statements of material facts and
omitting to state material facts necessary in order to make the statements
made, in the light of the circumstances under which they were made, not
misleading; and (iii) engaging in acts, practices, and a course of business which
operated and would operate as a fraud and deceit upon the Investors in the
Connolly Entities.
(Emphasis added). Thus, contrary to Connollys contention, the indictment
clearly made reference to securities.
Connolly further contends that the indictment did not come close to
identifying an instrument that would fall within the definition of security as
defined by 15 U.S.C. 77b. Section 77b defines the term security, in
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pertinent part, as follows: any . . . transferable share, investment contract, . .

. , or, in general, any interest or instrument commonly known as a security.
In order for a security to be deemed an investment contract within the
meaning of the Securities Act of 1933, 77a et seq., there must be an
investment of money in a common enterprise with profits to come from the
entrepreneurial and management efforts of others. See Securities and
Exchange Commission v. Howey Co., 328 U.S. 293 (1946); Curran v. Merrill
Lynch, Pierce, Fenner and Smith, Inc., 622 F.2d 216 (6th Cir. 1980); Goodman v.
DeAzoulay, 539 F.Supp. 10 (E.D. Pa. 1981); SEC v. Merrill Scott & Associates,
Ltd., 505 F.Supp.2d 1193 (D.Utah 2007).
The indictment clearly alleged facts demonstrating that Connollys
scheme to defraud involved an investment contract or an interest commonly
known as a security.4 In particular, among other things, the indictment
alleged the following facts:
1) Connolly solicited capital contributions from investors,
2) Connolly prepared a prospectus that described the building, the
number of shares to be purchased in each building, and the
ownership structure,
3) Connolly set up an LLC or limited partnership to own each building
and a trust to be the non-managing member or limited partner.

In this regard it is important to note that, on or about May 17, 2012, the SEC filed a
complaint against Connolly for securities fraud based upon the same conduct alleged in the
present criminal case. See Civ. Docket No. 12-2952 (WJM). In that complaint, the SEC
stated that the interests or shares in the Investment Vehicles that Connolly sold to investors
were securities within the meaning of the Securities Act [15 U.S.C. 77(b)(1)]. On or about
March 10, 2014, Connolly entered into a consent judgment in the civil case which permanently
restrained him from violating the Securities Exchange Act.
4

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4) The investors were the beneficiaries of the trust, and Connolly was
both the trustee of the trust and the property manager for the
buildings.
5) Connolly was responsible for determining dividends and making
distributions to the investors, and
6) Connolly obligated the trusts to mortgages and second mortgages as
well as refinancing of mortgages.
Accordingly, the indictment specified more than sufficient facts to demonstrate
that the scheme to defraud involved a common enterprise (each trust), the
expectation of profits (dividends), and that the profits would result from the
efforts of others (i.e., Connolly, the trustee and managing partner).
Connollys further contends that the indictment failed to offer even the
slightest description of the scheme to defraud. See Connollys Section 2255
petition at p. 13. Suffice it to say, that Count One of the indictment contains
approximately 13 pages and 38 paragraphs describing in explicit detail the
object of the fraudulent scheme, an overview of the fraud, specific examples of
the fraudulent conduct, and lulling payments, lulling statements, and other
fraudulent misrepresentations made by Connolly in furtherance of the scheme.
Finally, contrary to Connollys contention, the indictment also described
the way in which Connollys fraudulent activity made use of interstate
commerce or the mails.5 Notably, among other things, Connolly (1) resided in

Connolly complains that the indictment never alleged in what manner he used facilities of
national securities exchanges. The use of national securities exchanges is only one manner in
which this statutory element can be satisfied. The indictment clearly set forth facts to show
the use of instrumentalities of interstate commerce and/or the use of the mails. The statute is

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New Jersey but purchased properties in Pennsylvania, 2, 36, (2) solicited

investors in other states, including Pennsylvania and Florida, 1, (3) received
checks from investors by mail, 37-39, and (4) received wire transfers of
funds from investors.
Connollys complaint regarding Count 10 also lacks merit. Connolly
contends that because he did not plead guilty to the charges of mail or wire
fraud alleged in the superseding indictment, Count Ten failed to state an
offense, as the predicate of criminally derived property no longer existed. To
the contrary, defendant can be found guilty of a violation of 18 U.S.C. 1957,
even if the underlying criminal activity is never charged as a separate offense.
In any event, paragraph 1 of Count Ten specifically stated that paragraphs 1
through 9 and 11 through 48 of Count One of the Superseding Indictment were
specifically re-alleged as if set forth at length therein. Accordingly, Count Ten
contained sufficient details alleging the use of the mails and wires in
furtherance of the scheme to defraud the investors.
In sum, Connolly has failed to establish that his counsels representation
was deficient in recommending that he plead guilty to the charges contained in
Counts One and Ten. Connolly pleaded guilty to only two counts of a fifteen
count indictment. Moreover, his plea agreement contained only factual
stipulations and not guideline stipulations giving his counsel greater latitude to
make sentencing arguments for a reduced sentence. Under all the
written in the disjunctive and accordingly each method of satisfying this element does not need
to be established.

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circumstances, it was objectively reasonable for counsel to have advised

Connolly to take a deal that the United States had offered rather than risk a far
worse outcome at trial.
This Court need not even reach the first part of the Strickland test,
however, because Connolly cannot satisfy the second. See Strickland, 466 U.S.
at 697 (ineffective assistance claim can be resolved by finding a lack of
prejudice without reaching adequacy of performance). Connolly must show
that there is a reasonable probability that, but for counsels errors, he would
not have pleaded guilty and would have insisted on going to trial. Hill, 474
U.S. at 59. This standard reflects the principle that only attorney errors that
affect the outcome of the adversarial process should be grounds for relief.
Strickland, 466 U.S. at 691.
A defendants subjective allegation that he would have chosen to go to
trial, without more, cannot establish prejudice. See Hill, 474 U.S. at 59. A
defendant must support his assertion by showing that in view of all of the
considerations in play at the time of the plea the chances of prevailing at
trial, given the strength of the prosecutions case and the availability of any
defenses, and the relative advantages of a trial and a plea going to trial would
have been a rational choice. See Hill, 474 U.S. at 59.
In the case at bar, Connolly does not allege that he would have gone to
trial, let alone, offered any support to justify that choice. If his counsel had
raised issues regarding the indictments lack of specificity, the United States
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could have remedied any perceived defect. Even now, Connolly does not
contend that he did not engage in a scheme to defraud the investors or engage
in monetary transactions with money that he derived through his use of the
mails and/or wires to further his fraudulent scheme. Moreover, Connolly had
a slim chance of escaping conviction at trial given the money trail and the
numerous witnesses who were prepared to testify against him at trial.
Although Connolly seeks an evidentiary hearing, where a Section 2255
motion clearly fails to demonstrate either deficiency of counsels performance
or prejudice to the defendant, then the claim does not merit a hearing. See
United States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988). Because the
record here establishes that counsel was not deficient, and that going to trial
would have been irrational, an evidentiary hearing is unnecessary. See in re
Sealed Case, 488 F.3d 1011, 1019 (D.C. 2007).
CONCLUSION
The petition fails to show grounds to vacate, set aside, or correct the
sentence. Accordingly, the defendants application should be dismissed
without any further hearing.
Respectfully submitted,

PAUL J. FISHMAN
United States Attorney
By: /s Leslie F. Schwartz
Assistant U.S. Attorney
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Case 2:14-cv-03574-WJM Document 9 Filed 10/25/14 Page 20 of 22 PageID: 117

CERTIFICATE OF SERVICE
I, Leslie F. Schwartz, an Assistant U.S. Attorney, do hereby certify that
on October 25, 2014, I caused a copy of the within Answer to the Petition of
David Connolly for relief under 28 U.S.C. 2255 to be mailed, by certified mail,
to:
David Connolly
BOP Reg. No. 64480-050
Camp/P.O. Box 2000
Fort Dix, New Jersey 08640
I certify that the foregoing statements made by me are true. I
understand that if any of the foregoing statements made by me are willfully
false, that I am subject to punishment.

PAUL J. FISHMAN
United States Attorney
/s Leslie F. Schwartz
By: LESLIE F. SCHWARTZ
Assistant U.S. Attorney

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