SAYLOR, District Judge.
Defendant Junior Alexander Lopez pleaded guilty in October 2011 to two separate and unrelated indictments. He pleaded guilty to one count of being a felon in possession of a firearm and one count of possession with intent to distribute cocaine base. In a separate indictment, he pleaded guilty to one count of conspiracy to defraud the government with respect to claims and sixteen counts of false, fictitious, and fraudulent claims. After pleading guilty, he was sentenced to a term of imprisonment.
Lopez has now moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, contending that he was unlawfully sentenced as a career offender because one of his predicate convictions was reduced (from assault and battery on a police officer to assault and battery) by the state court after he was sentenced. The state court expressly reduced the conviction in order to permit Lopez to seek a lower sentence in this Court by means of a § 2255 petition. He has also moved for appointment of counsel. For the reasons stated below, the motions will be denied.
On December 9, 2011, Junior Alexander Lopez pleaded guilty to two separate indictments
On May 10, 2012, this Court sentenced Lopez to a term of 262 months.
Meanwhile, on October 18, 2012, Lopez had filed a "Motion to Set Aside Guilty Plea and Vacate Convictions with Grounds" in the Worcester District Court as to his conviction for assault and battery on a police officer. In that motion, he claimed that his counsel failed to inform him of the elements of the offense, the possible consequences of a conviction, and his possible defenses.
On March 27, 2013, the Worcester District Court reduced his sentence from assault and battery on a police officer to assault and battery. The hearing lasted approximately two-and-a-half minutes. The defendant was not present. There is no evidence that the victim of the crime was aware of the hearing or the change in disposition.
During the hearing, Lopez's counsel simply argued that Lopez was classified as a career offender and had received a lengthy sentence in federal court. Counsel stated that if the judge granted the motion, Lopez would have the "opportunity to go back in front of Judge Saylor and try to have the sentence reduced to 18 years instead of 24[sic]." Counsel never mentioned any of the grounds raised in the motion, and the judge did not state any reasons for granting it. There is no evidence that the judge who reduced the charge was the same judge who had accepted the plea in the first instance.
The entire transcript of the hearing is reproduced here:
(Gov. Mem., Ex. 2).
In July 2013, Lopez filed this motion seeking to vacate his sentence pursuant to 28 U.S.C. § 2255. Specifically, he contends that he was unlawfully subjected to a career-offender guideline sentence because one of his convictions underlying the Court's determination that he was a career offender was vacated ten months after he was originally sentenced. He also filed a motion to appoint counsel.
The Court may appoint legal counsel for financially eligible persons seeking habeas corpus under sections 2241, 2254, or 2255 when the Court determines that the "interests of justice so require." 18 U.S.C. § 3006A(a)(2). The decision to appoint counsel is discretionary; a habeas defendant has no constitutional or statutory right to appointed counsel. Jackson v. Coalter, 337 F.3d 74, 77 n. 2 (1st Cir.2003). The statute does not set forth a standard for courts to apply in determining whether to appoint counsel. However, the First Circuit has pointed to three factors by which a court may discern the "rare" case
Here, the likelihood-of-success factor is dispositive. As discussed below, the Court finds that none of defendant's claims are likely to merit the extraordinary remedy of habeas relief. Accordingly, the motion to appoint counsel will be denied.
Pursuant to section 2255, a prisoner may file a motion to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255. A court may grant post-conviction relief on the grounds that the sentence (1) was imposed in violation of the Constitution or laws of the United States, (2) was imposed by a court that lacked jurisdiction, (3) was in excess of the statutory maximum, or (4) was otherwise subject to collateral attack. David v. United States, 134 F.3d 470, 474 (1st Cir.1998). Petitioner's claim is not based on a constitutional or jurisdictional defect and his sentence was not in excess of the statutory maximum; the claim thus must be analyzed under the fourth category. The "fourth category includes only assignments of error that reveal `fundamental defect[s]' which, if uncorrected, will `result[ ] in a complete miscarriage of justice,' or irregularities that are `inconsistent with the rudimentary demands of fair procedure.'" Id. (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). A habeas petitioner bears the burden of establishing that he is entitled to relief under section 2255. Id.
As background, Section 4B1.1 of the United States Sentencing Guidelines categorizes a defendant as a career offender if
U.S.S.G. § 4B1.1(a).
The government contends that a claim of misapplication of the Sentencing Guidelines is not ordinarily cognizable under section 2255. The Eighth Circuit has held that errors of guideline interpretation do not constitute a "complete miscarriage of justice" under section 2255 unless the error is a "fundamental defect." Sun Bear v. United States, 644 F.3d 700, 705-06 (8th Cir.2011) (en banc)); see also Auman v. United States, 67 F.3d 157, 160-61 (8th Cir.1995) (holding that "ordinary questions of guideline interpretation falling short of the `miscarriage of justice' standard do not present a proper section 2255 claim"). The Seventh Circuit arrived at the same conclusion, at least as to those defendants sentenced post-Booker, for whom the Guidelines are advisory rather than mandatory. Hawkins v. United States, 706 F.3d 820, 823-24 (7th Cir.2013), opinion supplemented on denial of reh'g, 724 F.3d 915 (7th Cir.2013); see also United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999) (remarking in dicta that "[b]arring extraordinary circumstances . . . an error in the application of the Sentencing Guidelines cannot be raised in a § 2255 proceeding").
The reasoning of the Seventh and Eighth Circuits is persuasive. Section 2255 is not intended as a remedy for "all claimed errors in conviction and sentencing." United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Only in rare circumstances do non-constitutional, nonjurisdictional errors warrant relief. See Knight v. United States, 37 F.3d 769, 773 (1st Cir.1994). Among other things, permitting defendants to challenge guideline calculations in a § 2255 proceeding would undermine the direct-appeal process, and result in a flood of unsubstantial, indeed trivial, non-constitutional challenges. See Gilbert v. United States, 640 F.3d 1293, 1310 (11th Cir.2011).
However, defendant's claim is not precisely one of guideline misapplication. His state conviction was vacated only after sentencing, and it is therefore unlikely that the First Circuit would have addressed the issue on direct appeal. See United States v. Mateo (Mateo I), 271 F.3d 11, 15 (1st Cir.2001) (declining to consider on direct appeal a matter that arose after sentencing). The availability of direct appeal is a substantial factor in disallowing motions under section 2255 for guideline misapplication errors. See Mateo v. United States, 276 F.Supp.2d 186, 195 (D.Mass.2003) aff'd, 398 F.3d 126 (1st Cir.2005). Because that route was unavailable here, section 2255 appears to be the appropriate avenue for revisiting sentences when the factors
In any event, presuming that defendant may challenge his guideline classification under section 2255, the Court did not commit an error in making a guideline calculation based on a conviction that was later vacated. The Sentencing Guidelines advise that courts, when tallying the qualifying convictions, should not count those that "have been reversed or vacated because of errors of law or because of subsequently discovered evidence exonerating the defendant" or that "have been ruled constitutionally invalid in a prior case." U.S.S.G. § 4A1.2, cmt. n. 6; see id. § 4B1.4 cmt. n. 3 (noting that the provisions of § 4A1.2 apply "to the counting of convictions under § 4B1.1"). However, if a conviction is set aside or a defendant pardoned "for reasons unrelated to innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma associated with a criminal conviction," that conviction should be counted. Id. § 4A1.2, cmt. n. 10; see United States v. Dobovsky, 279 F.3d 5, 6 (1st Cir.2002). Courts have thus counted, for purposes of guideline calculations, state-court convictions that had been amended so that defendants would be eligible for more lenient federal sentences. See, e.g., United States v. Yepez, 704 F.3d 1087, 1090-91 (9th Cir.2012) (en banc) (per curiam) (holding that state court's termination of probation nunc pro tunc to day before defendant committed federal crime did not render defendant eligible for "safety-valve" relief from mandatory minimum sentence); United States v. Martinez-Cortez, 354 F.3d 830, 831-32 (8th Cir.2004) (en banc) (finding that a district court committed error in not counting a conviction toward a defendant's criminal history points where the state court had reduced the probation term from 365 to 364 days because the state court did so "for the express purpose of avoiding a criminal history point in his federal drug sentencing"); Matos v. United States, 2007 WL 1462253 (D.R.I. May 16, 2007) (denying section 2255 motion based on subsequent state resentencing because the purpose was to reduce the federal sentence and not related to innocence or errors of law). In Mateo II, the First Circuit endorsed the approach of reviewing, pursuant to a section 2255 motion, the later-vacated state sentence based on whether that conviction is countable or not under the Guidelines. 398 F.3d at 135.
The question, therefore, is whether the state court here vacated defendant's conviction for assault and battery on a police officer, reducing it to an assault-and-battery conviction, based on innocence or errors of law or whether it did so for other reasons. In making that assessment, the Court may examine the state court's decision to "identify the reason for the state action in order to determine whether a prior sentence should be counted." Id. at 137.
The motion to vacate filed in the Worcester District Court cited, as grounds for relief, trial counsel's alleged failure to inform him of the elements of the offense,
Thus—and notwithstanding the legal arguments set forth in the written motion to vacate—the record demonstrates that the state-court decision was actually vacated to assist defendant in the federal sentencing process. It was not vacated because of innocence, an error of law, or constitutional invalidity. Accordingly, the Court properly considered defendant's conviction for assault and battery on a police officer in calculating the Guidelines range.
The practice of vacating convictions in state court for strategic purposes, in order to avoid federal sentencing consequences, continues to be a troubling phenomenon. See United States v. Marsh, 486 F.Supp.2d 150, 159 (D.Mass.2007), aff'd, 561 F.3d 81 (1st Cir.2009); cf. Brackett v. United States, 270 F.3d 60, 64 (1st Cir.2001) (noting that "[b]ecause the length of the federal sentences increases with prior state convictions, the sentencing guidelines have led to a cottage industry of diligent defense counsel seeking to vacate old state convictions in order to reduce the federal sentence" and calling the efforts "problematic"). As this Court said in Marsh:
486 F.Supp.2d at 159. Those concerns are equally present here. The state court made no findings (indeed, heard no argument) as to ineffective assistance of counsel or any other defect or deficiency in the original conviction. The only purpose for vacating the conviction was to attempt to influence the federal sentence.
Finally, the Court notes that while defendant's sentence is lengthy, his criminal record is extensive; it includes, among other things, a conviction for accessory after the fact to murder. He was sentenced to two different sets of criminal charges, both of which were serious and which involved weapons, drugs, and tax fraud. He has a lengthy history of substance abuse. Of course, there were mitigating factors as well, such as defendant's turbulent childhood. All told, the sentence imposed reflected the nature, circumstances, and seriousness of the offense and the history and characteristics of the defendant, promoted respect for the law, provided just punishment, protected the public, and incorporated the other factors set forth in 18 U.S.C. § 3553(a). It was appropriate at the time it was proposed, and the subsequent vacating of the conviction does not change that fact. See Vizcaino v. United States, 981 F.Supp.2d 104 (D.Mass.
In sum, the claimed error does not amount to a fundamental defect or a complete miscarriage of justice. Accordingly, the motion under section 2255 will be denied.
For the foregoing reasons, defendant's motion to vacate, correct, or set aside his sentence is DENIED.
