JOHN C. NIVISON, Magistrate Judge.
In this action, Petitioner John Doe, a/k/a Theotis Leonard, a/k/a Rashide Campbell, a/k/a Tony, has filed a motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 139; Supp. Motion, ECF No. 159.)
The Government requests summary dismissal on the merits on the sentencing enhancement claims, and argues that Petitioner's claims based on the lack of communication regarding a pretrial offer and sentencing negotiations are both untimely and meritless. (Response, ECF No. 165 at 1-2.)
Following a review of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.
Following a jury trial on November 30, 2011, and December 1, 2011, Petitioner was convicted of the distribution of a substance that contained cocaine base, in violation of 21 U.S.C. § 841(a)(1), and subject to the penalty provisions of 21 U.S.C. § 841(b)(1)(C). (Judgment, ECF No. 125 at 1; Jury Verdict, ECF No. 67; Superseding Indictment, ECF No. 27.)
In March 2012, i.e., after trial but before sentencing, trial counsel filed two successive motions to withdraw. (Motions to Withdraw, ECF Nos. 78, 85.) The Court held a hearing and denied the first motion on March 16, 2012. (Minute Entry, ECF No. 80; Oral Order, ECF No. 81.) On March 27, 2012, trial counsel filed a second motion to withdraw, noting that Petitioner had retained alternate counsel; the Court granted the motion. (Notice of Appearance, ECF No. 83; Motion to Withdraw, ECF No. 85; Order, ECF No. 86.)
At sentencing on August 28, 2012, the Court found the facts as set forth in the revised presentence investigation report. (Sentencing Tr. at 32.) The Court made the following guidelines calculations: The base offense level was 32, based on a drug quantity of 280 grams of cocaine base. (Id.) The Court added two levels for Petitioner's use of violence against an associate during the offense, and it added another two levels for possession of a firearm in connection with the offense. (Id.) The Court added three levels for Petitioner's role as a manager or supervisor. (Id. at 32-33.) Finally, the Court added two levels, pursuant to U.S.S.G. § 3C1.1, for obstruction of justice. (Id. at 33.) Petitioner's total offense level was 41, and his criminal history was Category I; the calculations yielded a guidelines range of 324 to 405 months. (Id.)
The Court considered the sentencing factors, pursuant to 18 U.S.C. § 3553(a), and focused particularly on the nature and circumstances of the offense, the seriousness of the offense, the need to promote respect for the law, and the need for general and specific deterrence. (Id. at 34.) The Court found that the size of the conspiracy, the use and possession of firearms, the use of violence, and the substantial amount of drugs, contributed to the danger caused by the offense. (Id. at 34-35.) The Court sentenced Petitioner to a prison term of 240 months, which is the maximum permitted under 21 U.S.C. § 841(b)(1)(C), and it imposed a term of three years of supervised release. (Judgment at 2-3.) United States v. Doe, 741 F.3d 217 (1st Cir. 2013).
The First Circuit upheld the conviction and sentence on appeal. Doe, 741 F.3d at 221. The Court held there was sufficient evidence to support the sentencing enhancements for the use of violence, for the possession of a firearm, and for Petitioner's involvement as a manager or supervisor. Id. at 235-38. The Court concluded,
Id. at 238. On October 6, 2014, the Supreme Court denied Petitioner's petition for a writ of certiorari. Doe v. United States, 135 S.Ct. 168 (2014).
Petitioner asserts he signed his section 2255 motion and placed it in the prison mailing system on September 28, 2015; the motion was filed on October 5, 2015. (Motion at 1, 7.) The Government does not dispute that Petitioner's motion was filed timely.
Petitioner's supplemental motion, which he alleges he placed in the prison mailing system on March 7, 2016, and which was filed on March 14, 2016, and an attachment to the supplemental motion, reiterated the three grounds asserted in the original motion. (Supp. Motion at 1, 4-7, 13; Attachment to Supp. Motion at 3-6.) Petitioner also added to his supplemental motion a fourth ground, in which he alleges that counsel failed to communicate a pretrial offer from the Government and the substance of sentencing negotiations counsel conducted with the Government. (Supp. Motion at 8; Attachment to Supp. Motion at 8; Reply at 5-7.)
A person may move to vacate his or her sentence on one of four different grounds: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction" to impose its sentence; (3) "that the sentence was in excess of the maximum authorized by law;" or (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).
A section 2255 petitioner must establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When "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).
A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994) ("[i]ssues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion") (quotation marks omitted).
"[A] defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence." Berthoff v. United States, 308 F.3d 124, 127-28 (1st Cir. 2002). Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010). The First Circuit has recognized that "federal courts have the authority to consider procedural default sua sponte." Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st Cir. 2013) (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)); see also Daniels v. United States, 532 U.S. 374, 382-83 (2001) (recognizing that "procedural default rules developed in the habeas corpus context apply in § 2255 cases") (citing Frady, 456 U.S. at 167-68).
An allegation of ineffective assistance of counsel can excuse a procedural default, but only if the petitioner demonstrates both that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the petitioner's defense. Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)); Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007). A district court reviewing a claim of ineffective assistance of counsel need not address both prongs of the test because a failure to meet either prong will undermine the claim. Strickland, 466 U.S. at 697. If a petitioner's "claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail." Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam).
"Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing `is not necessary when a [§] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.'" Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (quotation marks omitted)). In determining whether an evidentiary hearing is required, the court must "take as true the sworn allegations of fact set forth in the petition `unless those allegations are merely conclusory, contradicted by the record, or inherently incredible.'" Owens, 483 F.3d at 57 (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002)); DeCologero v. United States, 802 F.3d 155, 167 (1st Cir. 2015). Summary dismissal of a motion is permitted when the allegations are "`vague, conclusory, or palpably incredible,'" even "`if the record does not conclusively and expressly belie [the] claim.'" David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). The Court can reasonably require a petitioner to supply the Court with salient details of the claim prior to permitting discovery or a hearing. Id. (holding that "the district court did not abuse its discretion in refusing to license a fishing expedition").
The First Circuit's determination that the evidence was sufficient to support the three sentencing enhancements forecloses review of the claim in a section 2255 motion. See Singleton, 26 F.3d at 240. In addition, because the underlying claim fails, the related ineffective assistance claim also fails. See Tse, 290 F.3d at 465.
Even if Petitioner's claims were not foreclosed, dismissal is appropriate because Petitioner's claims lack merit. Contrary to Petitioner's assertions, both trial counsel and sentencing counsel argued against the sentencing enhancements Petitioner challenges in his section 2255 motion. (Supp. Motion at 4-7; Sentencing Memorandum, ECF No. 82 at 1-4; Sentencing Memorandum, ECF No. 119 at 3-5; Response to Government's Sentencing Memorandum, ECF No. 123 at 2-3; Sentencing Tr., ECF No. 133 at 5-6.)
Counsel's arguments at sentencing were based on the same or similar allegations Petitioner includes in the additional pages attached to his initial section 2255 motion. For example, Petitioner alleges in his section 2255 motion that there was no evidence that Petitioner controlled others in the drug operation; both trial and sentencing counsel made this point at sentencing. (Motion at 12; Sentencing Memorandum, ECF No. 82 at 4; Sentencing Memorandum, ECF No. 119 at 5.) Petitioner asserts in his section 2255 motion that one witness testified that she did not see Petitioner with a gun, but, rather, another person told her that Petitioner had a gun; counsel argued that the testimony of the witnesses regarding the use of firearms and the use of violence was not credible. (Motion at 13; Sentencing Memorandum, ECF No. 82 at 3 ("Defendant denies that he was ever involved in violence relating to the circumstances of this case."); Sentencing Memorandum, ECF No. 119 at 3 ("There does not appear to be any testimony that Defendant did in fact use violence on his associates . . . ."); Response to Government's Sentencing Memorandum at 2 ("Defendant avers that he did not use violence nor did he use a firearm in any manner during the time period described by the witnesses.").) In sum, even if the First Circuit's decision did not foreclose Petitioner's claim, Petitioner is not entitled to relief because the record contradicts his allegation that counsel failed to challenge the sentencing enhancements. See Owens, 483 F.3d at 57; Moreno-Morales, 334 F.3d at 145.
Petitioner did not raise on appeal any issue regarding plea negotiations or sentencing negotiations; therefore, any such claim is procedurally defaulted to the extent Petitioner asserts the claim independent of a claim of ineffective assistance of counsel. See Berthoff, 308 F.3d at 127-28.
Petitioner's initial section 2255 motion did not include a claim of ineffective assistance of counsel based on the failure to communicate a Government plea offer or the substance of sentencing negotiations. In the supplemental motion, Petitioner asserts a claim of ineffective assistance against trial counsel based on the failure to communicate a plea offer. (Supp. Motion at 8; Attachment to Supp. Motion at 8.) A review of Petitioner's reply reveals that his claim actually concerns an alleged failure to communicate a sentencing offer, rather than an alleged failure to communicate a plea offer. (Reply at 7.)
A letter from counsel to Petitioner, attached to Petitioner's supplemental motion, also confirms that Petitioner's claim focuses on the sentencing discussions. (Attachment to Supp. Motion at 8; Letter, ECF No. 159-2.) Counsel's letter appears to be dated March 23, 2012, and it appears to memorialize a conversation counsel had with Petitioner regarding sentencing.
(Letter at 1-2.)
The Government argues that Petitioner's claim was not timely filed. (Response at 31-32.) Petitioner does not contest the Government's assertion. (Reply at 6.) Rather, he maintains that the order (ECF No. 156) that permitted him to include the pages omitted from his initial section 2255 motion also provided him the opportunity to add the new claim. (Reply at 6.)
The Court's order permitted Petitioner to supplement his motion solely to include the pages that had been omitted from his initial section 2255 motion. (Order at 1.) The order did not alter the limitation period, which is provided by statute. See 28 U.S.C. § 2255(f). Section 2255(f) provides in pertinent part that "[a] 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from . . . (1) the date on which the judgment of conviction becomes final."
An otherwise untimely amendment to a section 2255 motion is permitted if it "relates back" to the original pleading. See Turner, 699 F.3d at 585. Under Fed. R. Civ. P. 15(c), "[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). The First Circuit has held:
Turner, 699 F.3d at 585 (quoting United States v. Ciampi, 419 F.3d 20, 23 (1st Cir. 2005) (quoting Mayle v. Felix, 545 U.S. 644, 657 (2005))). Whether a new claim relates back is a matter of within the district court's discretion, as the decision is reviewed for an abuse of discretion. See id.
Because the new claim arises out of counsel's alleged failure to communicate to Petitioner counsel's sentencing negotiations with the Government, Petitioner's new claim does not relate back to his initial section 2255 motion. In his initial motion, Petitioner asserted claims based on counsel's alleged failure to argue against certain sentencing enhancements. The enhancement-based claims are fundamentally different than the claim regarding the sentencing negotiations. The enhancement-based claims involve counsel's performance during the presentation of the substantive sentencing argument to the Court; the alleged lack of communication involves counsel's communications with Petitioner about discussions that preceded the sentencing argument. Petitioner's new claim thus does not relate back to his initial section 2255 motion, and fails because Petitioner did not timely file the claim.
Petitioner apparently alleges that the attorney-client communication described in counsel's March 23, 2012, letter did not occur. (Reply at 7.) Petitioner also asserts he did not receive the letter from counsel until after Petitioner asked counsel for the file in his case. (Id.) Petitioner contends that his allegations generate a factual dispute that must be resolved through an evidentiary hearing. (Id.) Even if the Court were to determine that Petitioner's claim relates back to the initial 2255 motion, Petitioner's claim fails on the merits.
In Lafler v. Cooper, 132 S.Ct. 1376 (2012), the Supreme Court recognized that "Strickland applies in the sentencing context, as `there exists a right to counsel during sentencing.'" Vargas-De Jesús v. United States, 813 F.3d 414, 417 (1st Cir. 2016) (quoting Lafler, 132 S. Ct. at 1385-86). Petitioner's allegations are accepted as true except to the extent they are conclusory, contradicted by the record, or inherently incredible. See DeCologero, 802 F.3d at 167; Owens, 483 F.3d at 57.
In Petitioner's case, the record, particularly trial counsel's first motion to withdraw, filed on March 15, 2012, contradicts Petitioner's unsubstantiated allegation that counsel failed to communicate with him regarding the sentencing negotiations. (Motion to Withdraw, ECF No. 78.) In the first motion to withdraw, counsel represented to the Court his assessment of the sentencing risk to Petitioner:
(Id. at 1.) Counsel then explained to the Court the sentencing negotiations he discussed with Petitioner, and Petitioner's response to the discussion:
(Id. at 1-2.) Following a hearing, the Court denied counsel's first motion to withdraw. (Minute Entry, ECF No. 80; Oral Order, ECF No. 81.)
Counsel's representation in the first motion to withdraw that he "has recommended this Agreement to Defendant" corroborates that counsel communicated the sentencing negotiations to Petitioner. (Motion to Withdraw, ECF No. 78 at 2; Letter, ECF No. 159-2.) Given the date of the motion to withdraw (March 15) and the date of the attorney-client conversation referenced in the March 23 letter (the previous day), the record suggests counsel discussed the negotiations with Petitioner on more than one occasion. Both communications occurred before sentencing on August 28. Counsel's representations in the motion to withdraw not only are credible given the context in which they were raised and counsel's obligation not to present baseless motions to the Court, but the representations also informed Petitioner of the substance of the negotiations prior to sentencing. In other words, at a minimum, Petitioner was made aware of the negotiations when the motion was filed, and likely during the hearing on the motion to withdraw.
In short, Petitioner's contention that counsel did not communicate to him the substance of the sentencing negotiations is plainly contradicted by the record. Petitioner, therefore, could not prevail on the claim even if the Court determined Petitioner timely filed the claim.
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. I recommend the Court deny relief and dismiss Petitioner's motion for habeas relief under 28 U.S.C. § 2255. I further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).