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

JOHN C. NIVISON, Magistrate Judge.

In this action, Petitioner Garry Collins moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 133.) Following a guilty plea, Petitioner was convicted of possession with intent to distribute 28 grams or more of cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(B). (Judgment, ECF No. 117 at 1.) The Court concluded Petitioner was a career offender and sentenced him to a term of 200 months in prison, to be followed by a term of eight years of supervised release. (Id. at 2-3; Sentencing Tr., ECF No. 126 at 16-18.)

Petitioner claims ineffective assistance based on counsel's alleged failure to persuade the Government to follow a Department of Justice policy memorandum; Petitioner contends that had the Government acted in accordance with the policy memorandum, the Government would not have filed an information charging a prior state court drug conviction, pursuant to 21 U.S.C. § 851, and consequently, Petitioner would not have been subject to a career offender sentencing enhancement. (Motion at 4, 18; Information, ECF No. 87; Policy Memorandum, ECF No. 133-3.)

Following a review of the record and after consideration 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.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

In the written plea agreement, Petitioner agreed to affirm a prior state court conviction, set forth in an information filed pursuant to 21 U.S.C. § 851, of aggravated trafficking in scheduled drugs. (Plea Agreement, ECF No. 103 at 1-2.) Consistent with the plea agreement, Petitioner affirmed the prior aggravated trafficking conviction at sentencing. (Sentencing Tr. at 4-5.) The Court accepted the plea agreement, and recognized Petitioner was subject to a mandatory ten-year minimum prison term, pursuant to 21 U.S.C. § 841(b)(1)(B). (Id. at 28; Presentence Conf. Tr., ECF No. 125 at 4-5.) The Court sentenced Petitioner as a career offender, pursuant to USSG § 4B1.1, based on two prior convictions: (1) the uncontested prior drug conviction alleged in the section 851 information; and (2) a conviction, of criminal threatening with a dangerous weapon, that Petitioner unsuccessfully argued was not a "crime of violence" under USSG § 4B1.2.1 (Sentencing Tr. at 16-17, 20.)

The First Circuit upheld the conviction and sentence on appeal, United States v. Collins, 811 F.3d 63 (1st Cir. 2016), and in May 2016, the Supreme Court denied certiorari, Collins v. United States, 136 S.Ct. 2397 (2016).

Petitioner placed his section 2255 motion in the prison mailing system in January 2017.2

II. DISCUSSION

A. Legal Standards

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). The burden is on the petitioner to establish that he is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the federal constitutional standard by which claims of ineffective assistance are evaluated; 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. The Court presumes "that counsel has `rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Companonio v. O'Brien, 672 F.3d 101, 110 (1st Cir. 2012) (quoting Strickland, 466 U.S. at 690).

B. Claim of Ineffective Assistance Regarding Policy Memorandum

In United States v. LaBonte, 520 U.S. 751, 761-62 (1997), the Supreme Court addressed the issue of prosecutorial discretion as part of its analysis regarding the United States Sentencing Commission's task when establishing the guidelines:

LaBonte, 520 U.S. at 761-62 (citations and footnote omitted).

In United States v. Paladin, 748 F.3d 438 (1st Cir. 2014), the First Circuit held that LaBonte foreclosed an argument under 21 U.S.C. § 851: "Paladin contends that broad prosecutorial discretion results in the arbitrary and capricious application of sentencing enhancements under § 851(e). This argument . . . is foreclosed by binding precedent as the Supreme Court has reviewed and deemed constitutional the applicable practices under § 851." Paladin, 748 F.3d at 454 (citing LaBonte, 520 U.S. at 761-62).3 The Sixth Circuit has noted that the policy memorandum at issue in Petitioner's section 2255 motion "is a guidepost for Department of Justice prosecutors in exercising prosecutorial discretion. . . ." United States v. Nagy, 760 F.3d 485, 490 (6th Cir. 2014). Petitioner's underlying argument thus fails because the Government's decisions with respect to the policy memorandum and whether to file a section 851 information are matters of prosecutorial discretion.

In addition, a Department of Justice policy memorandum does not confer any substantive rights on Petitioner: "[T]he internal guidelines of a federal agency, that are not mandated by statute or the constitution, do not confer substantive rights on any party." United States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990) (rejecting the argument that the prosecutor's failure to follow a Department of Justice policy conferred any right to relief). In Craveiro, the Court noted that the guideline at issue stated that "`a failure to comply is not intended to confer any rights on a defendant . . . .'" Id. (quoting guideline).

Similarly, the policy memorandum on which Petitioner relies states: "The policy set forth herein is not intended to create or confer any rights, privileges, or benefits in any matter, case, or proceeding." (Policy Memorandum, ECF No. 133-3 at 2 n.2.) See United States v. Barnes, 730 F.3d 456, 459-60 (5th Cir. 2013) (per curiam) (addressing the same policy memorandum at issue in Petitioner's section 2255 motion, and noting that the memorandum expressly stated it did not confer any rights).

Because the underlying argument lacks merit, the ineffective assistance claim fails as well; in United States v. Jabot, 199 F.3d 1324 (2d Cir. 1999) (unpublished), the Second Circuit held that counsel "could not have provided ineffective assistance by failing to convince the government to file" a motion under the sentencing guidelines, because "[w]hether or not to file a motion pursuant to [the guideline at issue] rests entirely within the discretion of the government." See Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam) ("Since [the 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.").

In Craveiro, the First Circuit also rejected an equal protection claim that was based on selective enforcement. 907 F.2d at 264-65. "[T]o prevail on a claim of selective enforcement of a statute in violation of a defendant's constitutional right to equal protection, the defendant would have to show that his selection was `deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'" Id. at 264-65 (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). Petitioner alleges selective enforcement, but he does not allege in his section 2255 motion that his selection was deliberately based on an arbitrary classification; rather, he contends that, based on the factors set forth in the policy memorandum, the Government should not have filed a section 851 information.4 Consequently, to the extent Petitioner asserts a claim of ineffective assistance based on the failure to argue a violation of Petitioner's right of equal protection, the claim fails.

In sum, Petitioner's claim of ineffective assistance of counsel fails because the decision to file a section 851 information was a matter of prosecutorial discretion.5 See id.

III. CONCLUSION

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 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).

NOTICE