JOHN C. NIVISON, Magistrate Judge.
In this action, Petitioner Benjamin Lee moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 158.) Following a jury trial, Petitioner was convicted of two counts of interstate stalking; the Court sentenced Petitioner to a total of 100 months in prison. (Judgment, ECF No. 126 at 1-2.) The First Circuit affirmed the conviction and sentence on appeal. United States v. Lee, 790 F.3d 12 (1st Cir. 2015).
In support of his section 2255 motion, Petitioner contends that counsel's performance was ineffective because counsel (1) failed to move for a continuance of the trial, abandoned Petitioner at a critical stage of the proceedings, and failed to present a complete defense; (2) failed to ensure that Petitioner had the opportunity to exercise his right to testify in his own defense; (3) failed to move to suppress evidence for violations of the Fourth and Fifth Amendments; (4) failed to argue for the exclusion of evidence of prior bad acts; and (5) failed to advise Petitioner regarding sentencing exposure. In addition, Petitioner alleges cumulative error.
The Government has moved to dismiss the section 2255 motion. (Response, ECF No.172.) 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.
The facts of the case are set forth in detail in the First Circuit's opinion on Petitioner's appeal. Lee, 790 F.3d at 13-15. They are repeated in this recommended decision only as necessary to the discussion of each of the issues raised in Petitioner's section 2255 motion.
Following a jury trial, Petitioner "was convicted of two counts of interstate stalking with the intent to harm, or even kill, his estranged wife and her boyfriend, in violation of 18 U.S.C. §§ 2261A(1) and 2261(b)(5)," for an offense that Petitioner committed in September 2012.
On Petitioner's challenge to the conviction, the First Circuit held (1) that the Court did not abuse its discretion in denying Petitioner's motion in limine to exclude evidence of prior abuse of his estranged wife; (2) that the Court did not abuse its discretion with respect to the timing of the trial; and (3) that the evidence was sufficient to support the conviction. Lee, 790 F.3d at 16-18.
On Petitioner's challenge to the sentence, the First Circuit held (1) that the Court did not misapply a sentencing enhancement for a pattern of activity when calculating the sentencing guidelines range; (2) that the Court did not abuse its discretion when it denied a downward departure for Petitioner's mental and physical condition; and (3) that the Court did not abuse its discretion with respect to the substantive reasonableness of the sentence. Id. at 18-19.
Petitioner did not file a petition for a writ of certiorari. His section 2255 motion was filed on May 16, 2016; the Government concedes it was filed timely.
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). "[A] habeas petitioner is not automatically entitled to a hearing and normally should not receive one if his allegations are `vague, conclusory, or palpably incredible.'" David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). The First Circuit has held that a Petitioner who "fails to reasonably substantiate his ineffective assistance of counsel claim with any material issues of fact . . . has not `overcome the presumption of regularity which the record . . . imports . . . .'" United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984) (quoting Walker v. Johnston, 312 U.S. 275, 286 (1941)). "[I]ssues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion." Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994) (quotation marks omitted). 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).
When a petitioner raises "claims for the first time on habeas, he must show both `cause' that excuses the procedural default and `actual prejudice' resulting from the alleged error." Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). "One way to meet the cause requirement is to show constitutionally ineffective assistance of counsel under Strickland v. Washington," 466 U.S. 668 (1984). Strickland requires a petitioner to demonstrate that "counsel's representation fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 688, 694. A court need not "address both components of the inquiry if the defendant makes an insufficient showing on one . . . ." Id. at 697.
Petitioner argues the Court abused its discretion with respect to the timing of the trial. (Motion at 13.) In a related claim, Petitioner argues that counsel's performance was deficient, and Petitioner was prejudiced, due to counsel's failure to move to continue the trial in order to present a complete defense. (Motion at 4, 12-13.) Petitioner also alleges that counsel omitted favorable testimony from two witnesses. (Id. at 20-22.) More specifically, Petitioner asserts that if called as witnesses, a psychologist would have testified that Petitioner expressed an intent merely to take photographs related to his divorce, and a friend would have testified that he had invited Petitioner to go hunting in Colorado. Petitioner argues the testimony would have introduced reasonable doubt as to Petitioner's intent. (Id. at 20-21.) Petitioner also contends that counsel abandoned him at a critical stage of the proceedings in order to attend to a matter of personal business. (Id. at 6, 17.)
Petitioner's claim that the Court abused its discretion regarding the scheduling of the trial is precluded, because the First Circuit decided the issue. Lee 790 F.3d at 17-18; see Singleton, 26 F.3d at 240. "Well before trial," the presiding judge designated the date on which the trial would conclude. Lee 790 F.3d at 17. Although defense counsel expressed some concern at one point about trial timing, on the court day before the day designated as the trial's final day, counsel said: "We are in very good shape. No further witnesses." Id. The parties rested.
Petitioner's related section 2255 ineffective assistance claims fail because the allegations are unsupported by the record. See David, 134 F.3d at 478. As the First Circuit noted, Petitioner's prior statements contradict the testimony Petitioner alleges the psychologist and the friend would have given: "[T]he pro se brief adds, he traveled to Maine only to take photos for use in the divorce, so he lacked the criminal intent required by statute. That, of course, is not what he said earlier, when he said that `he was going to kill [his estranged wife's partner,] and if [his estranged wife] didn't come home, he would kill her too.'" Lee, 790 F.3d at 18. Under the circumstances, the fact that counsel did not call the psychologist as a witness at trial cannot reasonably constitute substandard performance by counsel.
Petitioner's claim of abandonment is also unsupported by the record. In fact, on the day Petitioner maintains counsel abandoned the case, the record reflects that counsel was present in during the court proceedings, including during a chambers conference that concluded the proceedings for the day. (Trial Tr. IV at 139-66.) Petitioner thus has failed to demonstrate either substandard performance of counsel or prejudice. (Motion at 12-13.)
Petitioner argues that counsel provided substandard advice when counsel advised him not to testify. (Motion at 5, 16-17.) Petitioner described counsel's actions as "coercive" and "incomplete." (Id. at 16-17.) Petitioner alleges that, as a result of counsel's ineffective assistance, he did not testify that he lacked criminal intent. (Id. at 15.) The record lacks any support for Petitioner's claim.
At trial, the Court informed Petitioner of his right to testify or not to testify:
(Trial Tr. IV at 118-19.)
Petitioner has asserted no facts to support his claim of coercion by counsel. He thus has failed to overcome the presumption that the Court may rely on his statement, made in open court, that he alone made the decision not to testify. See Butt, 731 F.2d at 80.
Furthermore, even if counsel strongly advised Petitioner not to testify, such advice would have been "well within the range of professionally reasonable judgments," as the testimony may have exposed Petitioner to the risk of damaging cross-examination. See Strickland, 466 U.S. at 699; Siciliano v. Vose, 834 F.2d 29, 31 (1st Cir. 1987) (holding that "the strong urging of counsel" not to testify does not in itself demonstrate that a defendant's "constitutional right to testify was violated"). Finally, because Petitioner's decision not to testify likely reduced his exposure to impeachment, and because the Court informed Petitioner of his right to testify, Petitioner has not demonstrated prejudice.
In short, Petitioner has not demonstrated deficient performance by counsel or prejudice. Accordingly, Petitioner's ineffective assistance of counsel claim based on counsel's advice regarding Petitioner's right to testify fails.
Petitioner argues that counsel was ineffective because counsel failed to file a motion to suppress Petitioner's statements to the Maine State Police after Petitioner was stopped while driving near his estranged wife's home. (Motion at 19.) Petitioner contends the statements should have been suppressed because he had not received Miranda warnings before he made the statements.
The Government argues that counsel's performance was not deficient because Petitioner was not in custody until after he made the statements, and because Petitioner made the statements voluntarily; furthermore, the Government argues, the statements may have been useful to the defense as evidence of Petitioner's non-criminal intent. (Response at 22-23.) The Government also argues that Petitioner has failed to demonstrate prejudice, because there is no reasonable probability that the suppression of Petitioner's statements would have resulted in a different outcome. (Id. at 23.)
At trial, a sergeant with the Maine State Police testified that he was on duty and responded to the estranged wife's emergency call that she believed Petitioner was stalking her in a white Cadillac with out-of-state license plates. (Trial Tr. III, ECF No. 147 at 123-24.) After locating the vehicle, the officer activated his emergency lights, and Petitioner stopped the vehicle. (Id. at 125.) The officer testified that he asked Petitioner to step out of the vehicle, he did a pat-down of Petitioner, and he asked Petitioner to empty his pockets. The officer further testified that after he determined that Petitioner did not have weapons on his person, he "started to have a conversation" with Petitioner. (Id. at 126.)
The officer asked Petitioner whether there were any weapons in the car, and Petitioner asked why the officer had stopped him. (Id. at 127.) The officer told Petitioner that "there was a complaint about his vehicle and that he might be armed." (Id.) After the officer repeated the question a couple of times, Petitioner told him there were four weapons in the car. (Id. at 128.) The officer testified that "[a]t a certain point," he asked Petitioner whether he had any loaded firearms in the car. (Id.) The officer testified: "I got an equivocal response, an unclear response as to whether or not the gun was loaded." (Id.)
The officer testified that he was alone with Petitioner for less than ten minutes, and that after other officers arrived, they recorded the conversation with Petitioner on audio and camera. (Id. at 130-31.) The officer testified that before the other officers arrived, he asked Petitioner why he was in the town where he was stopped, and Petitioner provided the officer with "[s]everal different versions" in response. (Id.) The explanations included that Petitioner came to visit friends in New England; that he came to hunt elk; and that he came to see his daughter. (Id. at 131.) At one point, Petitioner told the officer that his estranged wife did not know he was coming to Maine, and at another point he said she was aware. (Id. at 131-32.)
A person who is detained temporarily pursuant to a traffic stop is not in custody for purposes of the Miranda warnings, which apply only to custodial interrogations. United States v. Campbell, 741 F.3d 251, 265-66 (1st Cir. 2013) ("Traffic stops are `comparatively nonthreatening,' and therefore do not require Miranda warnings to counter the threat of coercion) (quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)).
Upon review of the totality of the circumstances, a reasonable practitioner would conclude that Petitioner was not in custody when he made his statements to the police. The officer had a reasonable basis for an investigatory stop, and the officer's questions were limited and reasonable given the reason for the stop. The stop was relatively brief and did not involve a restraint of Petitioner, other than was reasonably necessary to ensure the officer's safety (i.e., for the pat-down of Petitioner).
Furthermore, counsel reasonably could have decided to use Petitioner's statements to police during the stop to offer an explanation, given at the time of the stop, for Petitioner's presence near his estranged wife's home.
Finally, Petitioner has failed to demonstrate prejudice, because even if counsel had filed a successful motion to suppress, the other evidence of guilt was "so overwhelming" that Petitioner would have been convicted. United States v. Coker, 433 F.3d 39, 47 (1st Cir. 2005). The First Circuit concluded that "[i]t is abundantly clear from the record that a rational jury could find the defendant guilty." Lee, 790 F.3d at 18. There is ample evidence to support the conviction, including, as the First Circuit noted, Petitioner's prior statement that "`he was going to kill [his estranged wife's partner,] and if [his estranged wife] didn't come home, he would kill her too.'" Id.
In sum, Petitioner has failed to demonstrate either deficient performance or prejudice with respect to counsel's failure to file a motion to suppress Petitioner's statements.
Petitioner also argues that counsel should have moved to suppress the tangible evidence obtained as the result of the stop of Petitioner's vehicle. (Motion at 19.) The following was seized from the car: two handguns, two rifles, one shotgun, a roll of duct tape, new rope, rubber gloves, plastic bags, handcuffs, a map of Maine, and an open sleeping bag. (Trial Tr. III at 142-43.)
The Government argues that counsel's performance was not deficient, because the warrantless search of the car Petitioner was driving when he was stopped was legal, and therefore, a motion to suppress would have been futile. (Response at 23.) Specifically, the Government contends Petitioner's failure to provide a plausible explanation for his presence outside his estranged wife's house, after she had reported that he was stalking her, justified the warrantless search of the vehicle Petitioner was driving. (Id. at 23.)
A motion to suppress the evidence obtained from the car would have been futile, as the warrantless search and seizure took place after the arrest, and it was valid under either the search-incident-to-arrest exception, or the inventory-search exception, to the warrant requirement. See United States v. Acosta-Colón, 741 F.3d 179, 206 (1st Cir. 2013). (Trial Tr. III at 135-36.)
The search-incident-to-arrest exception "permits a warrantless search if `it is reasonable to believe' that the car has `evidence of the offense of arrest.'" Id. (quoting Arizona v. Gant, 556 U.S. 332, 351 (2009)). In response to the officer's question about weapons, Petitioner told the officer there were weapons in the car. (Trial Tr. III at 127-28.) A reasonable officer would conclude that the vehicle contained evidence of the stalking crime for which Petitioner was arrested; therefore, a warrantless search was permissible under the search-incident-to-arrest exception, see Acosta-Colón, 741 F.3d at 206.
Under the inventory-search exception, if the arrest is legal, "the police can take the car back to the barrack and search it pursuant to standard inventory procedures—provided also that they do not `act[] in bad faith or for the sole purpose of investigation.'" Id. at 207 (quoting Colorado v. Bertine, 479 U.S. 367, 371 (1987)). Petitioner has not offered any evidence, and the record does not support any argument, that the arrest was illegal or that the search was conducted in bad faith or solely for investigation; therefore, a warrantless search of the vehicle was permissible under the inventory-search exception, see Acosta-Colón, 741 F.3d at 207.
Because the warrantless search was permissible under either exception to the warrant requirement, counsel's decision not to file a motion to suppress was not substandard, and Petitioner was not prejudiced by the decision.
Petitioner alleges that counsel failed adequately to argue that evidence of Petitioner's prior acts of domestic violence against his estranged wife should have been excluded due to unfair prejudice. (Motion at 23.) This issue was the subject of a motion in limine (ECF No. 59), which the Court denied in part as to evidence of the prior abuse. (Oral Order, ECF No. 85.) Petitioner appealed from the decision, and the First Circuit determined that the Court did not abuse its discretion. Lee, 790 F.3d at 16-17.
Petitioner's claim lacks merit. Counsel filed a motion in limine to exclude evidence of prior abuse; the fact the Court was not persuaded does not give rise to a claim of ineffective assistance. See Strickland, 466 U.S. at 699. Counsel's performance was not deficient, and Petitioner was not prejudiced.
Petitioner argues that counsel failed to inform him that he might be subject to a sentencing enhancement under USSG § 2A6.2, and failed to inform him that he could be sentenced to consecutive terms resulting in a total of 100 months in prison. (Motion at 22-23.)
At the sentencing stage of the proceedings, counsel made an argument based on USSG § 2A6.2; the revised presentence investigation report reflects that Petitioner objected to the report's suggestion of a four-level enhancement under section 2A6.2. Petitioner conceded a two-level enhancement for possession of a firearm, but he argued against a finding of a pattern of activity. Counsel made the same argument in Petitioner's sentencing memorandum. (Sentencing Memorandum, ECF No. 121 at 7-8.)
The revised presentence investigation report discussed USSG § 5G1.2(d), which provides for consecutive sentences when, as here, there are multiple counts of conviction, and "the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment."
At sentencing, in response to the Court's inquiry, counsel represented that he had discussed the revised presentence investigation report with Petitioner. (Sentencing Tr., ECF No. 151 at 4.) When the Court asked whether it was Petitioner's understanding that the only dispute under the sentencing guidelines was whether Petitioner had engaged in a pattern of activity, Petitioner responded by saying: "Yes. That's what the attorney has told me." (Id. at 7.)
"Normally, the plea and sentencing proceeding records interpose `a formidable barrier in any subsequent collateral proceeding[s],' and the statements of the defendant and his lawyer at such a hearing are presumed to be true." Digiorgi Alegre v. United States, 974 F.2d 1329 (1st Cir. 1992) (per curiam) (unpublished) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Petitioner's section 2255 allegation that counsel failed to discuss the sentencing guidelines lacks credibility given his statements at sentencing. Petitioner points to no evidence that would refute the presumption that his statements at sentencing were true. Petitioner, therefore, has failed to demonstrate that counsel's performance was deficient, or that Petitioner was prejudiced.
Petitioner argues that if the Court does not find any of his individual claims persuasive, the Court should nevertheless grant relief because the cumulative effect of alleged errors rendered his conviction and sentence fundamentally unfair. (Motion at 23-24.)
"`Strickland clearly allows the court to consider the cumulative effect of counsel's errors in determining whether a defendant was prejudiced.'" Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir. 2005) (quoting Kubat v. Thieret, 867 F.2d 351, 370 (7th Cir. 1989) (citing Strickland, 466 U.S. at 694)). In this case, however, because Petitioner's claim does not allege any specific facts independent of those alleged in his other claims, and because, as explained above, the other claims lack merit, there is no basis for Petitioner's claim that he was prejudiced by a cumulative effect of errors. See id.
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. In addition, I recommend that the Court deny 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).
