ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

GEORGE Z. SINGAL, District Judge.

The United States Magistrate Judge filed with the Court on January 9, 2012, her Recommended Decision (Docket No. 52). Movant filed his Objection to the Recommended Decision (Docket No. 54) on February 24, 2012.

I have reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in her Recommended Decision, and determine that no further proceeding is necessary.

RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

MARGARET J. KRAVCHUK, United States Magistrate Judge.

Kaya Simions is pursuing 28 U.S.C. § 2255 relief from his guilty plea conviction and his felon-in-possession Armed Career Criminal sentence. Simions asserts two ineffective of assistance grounds in his motion: first, he faults his attorney for not moving for a downward departure on the basis of mental incapacity and for not making an argument that Simions's criminal history category substantially over-represented the seriousness of his criminal history and, second, he complains that his attorney did not seek a psychiatric exam to determine competency when he committed this federal offence prior to the entry of the guilty plea and/or the sentencing proceeding.1 Simions was sentenced to 180 months, the mandatory minimum for his Armed Career Criminal conviction.2 He did not appeal his conviction or sentence.

Discussion

The Prosecution Version to which Simions pled guilty described his federal firearm offense as follows:

(Doc. No. 14 at 1.) It also listed five violent crimes in Massachusetts that were punishable by a term of imprisonment exceeding one year. (Id. at 2.)

Ineffective Assistance of Counsel Standard3

Simions's 28 U.S.C. § 2255 claims are dependent on proving ineffective assistance of counsel under the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) Sixth Amendment standard and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), a case addressing ineffective assistance claims related to plea decisions. "In order to prevail," Simions must show "both that counsel's representation fell below an objective standard of reasonableness and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. De La Cruz, 514 F.3d 121, 140 (1st Cir.2008) (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052). "In other words," Simions "must demonstrate both seriously-deficient performance on the part of [her] counsel and prejudice resulting there from." Id. "Moreover, when, as in this case, a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing." United States v. McGill, 11 F.3d 223, 225 (1st Cir.1993).

Ground One

Ground One really consists of two distinct grounds relating to sentencing. Simions faults counsel for not moving for a downward departure because of mental incapacity and not seeking a downward departure because of an overstatement of his criminal history. Simions states that his attorney "showed no remorse as to the downward departure where petitioner has routinely [asked about] the downward departure under USSG § 5K2.13 or a competency hearing under [18] U.S.C. § 4241(a)." (Reply Mem. at 9.)

United States Sentencing Guideline § 5K2.13 provides:

U.S.S.G. § 5K2.13 (emphasis added).4

United States Sentencing Guideline § 481.3(b) allows downward departures for the overrepresentation of a defendant's criminal history but carries the following prohibitions that are applicable to Simions. He was not eligible for a downward departure because:

U.S.S.G. § 4A1.3 (emphasis added).

In response to the Presentence Investigation Report, Simions's attorney actually made a case for USSG § 4A.1.3(b)(1) and § 5K2.13 downward departures. The revised report summarized:

(PIS ¶¶ 71, 72) (emphasis added).

The Revised Presentence Report was signed April 14, 2010. In defense counsel's second round of objections he focused on Simions's Armed Career Criminal Status arguing that the prosecution was unable to meet its burden of proof as to three of Simions's predicate convictions. (Revised PIR at 21.) Counsel cited United States v. Holloway I, 499 F.3d 114 (1st Cir.2007) which was before the First Circuit for a second time and was awaiting oral argument and its relevance to "the assault" convictions in Paragraphs 26 (assault and battery on a police officer & resisting arrest) 30 (breaking and entering in the nighttime & assaults with a dangerous weapon), and 31 (assault and battery on a public employee). (Id.)5 On May 13, 2010, counsel filed a sentencing memorandum that focused entirely on challenging Simions's ACCA status. (Doc. No. 6.) This was the key focus of Simions's advocacy during the sentencing hearing. (Sentencing Tr. at 3-13.)

With regards to the ineffective assistance of counsel claims, there is no reason to dig deeper into a discussion of the law before and after Holloway II. That is because counsel clearly presented his arguments as to why three of the offenses should not count as predicate offenses and after careful consideration this Court determine that all five convictions were predicates for ACCA purposes. (Sentencing Tr. at 13.) It indicated, in discussing one of the convictions, "under existing First Circuit precedent that's a qualifying conviction. I understand your position ... that it's up for review. But it appears to be an underlying — proper underlying conviction under current law." (Id. at 5.) Once it was clear that Simions's ACCA status blocked any departure from the fifteen-year statutory minimum, this ACCA challenge was counsel's best tactical approach to securing a lower sentence.6

There is correspondence between client and counsel documenting that the latter made it clear to Simions that he faces a fifteen-year mandatory maximum if he fell under the ACCA. In his December 31, 2009, letter to Simions predating the guilty plea, the federal defender explained:

(Doc. No. 51-1 at 1.) The letter stressed: "[T]he choice of a guilty plea is totally up to you and you do not have to plea[d] guilty and can change your mind up until January 27, 2010." (Id. at 2.) A letter dated January 26, 2010, indicated: "While we can object to the judge applying the ACCA, my current best legal analysis is that the judge will find you are subject to ACCA and you will face at least 15 years in federal prison on this case." (Doc. No. 51-2 at 1.) After sentencing, counsel wrote a May 19, 2010, letter to Simions notifying him that he had the right to appeal both the conviction and the sentence within fourteen days of his sentencing. (Doc. No. 51-3 at 2.) "The judge found five priors that count," counsel continued, "ACCA requires only three. You certainly may appeal, but with three residential burglaries, each admitted to by you on the recordings [presented at sentencing], plus the assaults, I do not see a very realistic chance for any success in an appeal. Again, the decision is up to you." (Id.) Simions signed the form clearly indicating that he did not want to appeal and waived the appeal. (Id.) Simions does not dispute that he received these letters.

It is my conclusion that Simions is not entitled to 28 U.S.C. § 2255 relief as to Ground One. Pressing an argument for the departures irrespective of Simions's ACCA status would have been a futile exercise even if there was some merit in the underlying arguments.7 The record evidences an informed and avid advocacy by defense counsel on Simions's behalf and the decision to focus on the ACCA concern was clearly a tactical choice. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Ground Two

Simions's second 28 U.S.C. § 2255 ground is that his attorney did not seek a psychiatric exam to determine competency. Simions writes:

(Sec. 2255 Mem. at 21.)

"At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant... the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant." 18 U.S.C. § 4241(a).8 "The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." Id.; see also United States v. Sanchez-Ramirez, 570 F.3d 75, 80 (1st Cir.2009). "`Competence to enter a guilty plea is determined by the same criteria as those governing competence to stand trial: whether the defendant is able to understand the proceedings and assist his counsel with a reasonable degree of rationality.' United States v. Morrisette, 429 F.3d 318, 322 (1st Cir.2005)." United States v. Figueroa-Gonzalez, 621 F.3d 44, 47 (2010). The same would hold true for sentencing proceedings.

In a December 22, 2009, letter from his public defender, counsel indicated in part:

(Doc. No. 51 at 1.) This letter pre-dated the January 27, 2010, change of plea.

In his reply memorandum Simions faults counsel for failing "to seek evaluation rather than asking said petitioner if he needs to be evaluated." (Reply Mem. at 5, Doc. No. 50.) He stresses he had "no career in law" prior to entry of his guilty plea. (Id.) He also represents that this question put to him by counsel "caused immediate paranoia." (Id. at 7.)

The record belies Simions's suggestion that there was a reason to call for an 18 U.S.C. § 4241 competency hearing either before the plea was taken or before sentencing. Near the beginning of the change of plea hearing the following exchange took place between the federal defender and the Court:

(Rule 11 Tr. at 4.) See McGill, 11 F.3d at 225.

There is absolutely no indication that during sentencing there was any concern raised about his competency during that proceeding. (See, e.g., Sentencing Tr. at 2.) The federal defender did make a point of addressing Simions's past mental health struggles with the Court during the sentencing proceedings:

(Sentencing Tr. at 15.) This is an indication that defense counsel did not feel like Simions was currently laboring under mental incompetency.9 This Court noted: "You're not on medications now; you seem to be doing well." (Id. at 17.)10 See McGill, 11 F.3d at 225.

I conclude that there is no merit to this ground. Simions has not provided evidence concerning his interactions with counsel that supports a conclusion that counsel should have moved for a competency exam even though his client expressly told him he did not want a mental health exam and did not feel that his mental health was an aspect of the current charges. All evidence shows that Simions understood the proceedings and assisted his counsel with a reasonable degree of rationality. Figueroa-Gonzalez, 621 F.3d at 47.

CONCLUSION

For the reasons above, I recommend that the Court deny Simions 28 U.S.C. § 2255 relief. I further recommend that a certificate of appealability should not issue in the event Simions files a notice of appeal because there is no substantial showing of the denial of a constitutional right as contemplated by 28 U.S.C. § 2253(c)(2).

NOTICE

A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within fourteen (14) days of being served with a copy thereof. A responsive memorandum shall be filed within fourteen (14) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.