Defendant (1) MICHAEL PELLETIER represented by MICHAEL PELLETIER, TERMINATED: 01/23/200811109-036, PRO SE, MATTHEW S. ERICKSON, NORUMBEGA LAW OFFICE, LEAD ATTORNEY ATTORNEY TO BE NOTICED
Plaintiff USA represented by JAMES L. MCCARTHY, OFFICE OF THE U.S. ATTORNEY, LEAD ATTORNEY ATTORNEY TO BE NOTICED, JOEL B. CASEY, OFFICE OF THE U.S. ATTORNEY LEAD ATTORNEY, ATTORNEY TO BE NOTICED, MARGARET D. MCGAUGHEY, U.S. ATTORNEY'S OFFICE, LEAD ATTORNEY ATTORNEY TO BE NOTICED, DONALD E. CLARK, U.S. ATTORNEY'S OFFICE, ATTORNEY TO BE NOTICED
F. TODD LOWELL, ATTORNEY TO BE NOTICED, PAULA D. SILSBY, U.S. ATTORNEY'S OFFICE, ATTORNEY TO BE NOTICED, RENEE M. BUNKER, U.S. ATTORNEY'S OFFICE ATTORNEY TO BE NOTICED
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
John C. Nivison U.S. Magistrate Judge
In this action, Petitioner Michael Pelletier, pursuant to 28 U.S.C. § 2255, seeks to vacate, set aside or correct his conviction and sentence of life imprisonment, which were entered following a trial on various counts relating to the importation, possession, and distribution of marijuana. In addition to Petitioner’s initial section 2255 motion (ECF No. 682), the matter is before the Court on Petitioner’s motion to amend his initial section 2255 motion (ECF No. 690), an amended motion (ECF No. 691), and a second motion to amend (ECF No. 710).
In his section 2255 motion, Petitioner asserts sixteen grounds, many of which grounds focus on claims of ineffective assistance of counsel regarding the quantity of drugs involved in Petitioner’s underlying conviction and sentence. The Government does not separately object to Petitioner’s initial motion to amend, but argues that certain claims in the amended motion are new and are time-barred. (Response, ECF No. 703 at 41-42.) The Government also argues that the second motion to amend is waived, time-barred, and fails on the merits. As to Petitioner’s substantive claims, the Government contends that Petitioner’s claims lack merit, are procedurally barred, or are not cognizable in a section 2255 motion. The recommendation is that the Court grant both motions to amend, deny the requested relief, and dismiss the amended motion.
I. Factual Background and Procedural History
Following a six-day jury trial in July 2007, Petitioner was found guilty of conspiracy to import and distribute marijuana, money laundering, conspiracy to engage in money laundering, Social Security fraud, conspiracy to engage in Social Security fraud, and arranging a truck purchase to evade financial institution reporting requirements. United States v. Pelletier, 666 F.3d 1, 3 & n.1 (1st Cir. 2011). (Jury Verdict, ECF No. 280.) Petitioner was found guilty of all of the charges against him except for one charge that had been dismissed. (Jury Verdict; Order, ECF No. 276.) The jury found that the amount of marijuana associated with Petitioner’s participation in the importation and distribution conspiracies was 1, 000 or more kilograms. (Jury Verdict at 2.) The Court sentenced Petitioner to life imprisonment on the distribution count (count 2) (Judgment, ECF No. 384 at 3); to 240 months on the importation count (count 1), the counts for conspiracy to engage in money laundering (counts 5, 10), and one money-laundering count (count 11); and to 120 months on the remaining counts for money laundering (counts 3, 6, 12), structuring (count 7), and Social Security fraud (counts 13, 15). The terms of imprisonment were to be served concurrently. (Judgment at 3.)
Petitioner’s section 2255 motion focuses in large part on the trial testimony of Adam Hafford, who testified for the Government pursuant to an agreement to reduce his sentence on an unrelated firearms offense. (Trial Tr., ECF No. 308 at 52-55.) Hafford testified that he first met Petitioner in 2001, when both men were incarcerated together, and that Petitioner offered him unspecified work when Hafford was released from jail. (Trial Tr., ECF No. 308 at 67-68, 139, 179.) When Hafford was released in June 2004, he went to Petitioner, who arranged for him to work carrying marijuana while swimming across the St. John River from Canada to Maine from June to November 2004. (Trial Tr., ECF No. 308 at 68-71, 82.) On a couple of occasions, Hafford carried bags of money when swimming from Maine to Canada. (Trial Tr., ECF No. 308 at 81, 167.)
Hafford also testified that he met Petitioner’s co-defendant, Michael Easler, while Easler and Hafford were incarcerated together. (Trial Tr., ECF No. 308 at 68.) Hafford and Easler were again incarcerated together in 2007, and at that time Easler told Hafford that he had worked for Petitioner in the same capacity as Hafford (i.e., ferrying marijuana in from Canada by swimming across the river), and that he had stolen money from Petitioner. (Trial Tr., ECF No. 308 at 109, 115-17.) Hafford further testified that he saw Petitioner hand Ricky Daigle $50, 000 in cash to buy real estate. (Trial Tr., ECF No. 308 at 98-99.) The real estate transaction was the subject of three of Petitioner’s money-laundering convictions (Counts 10-12).
At the sentencing hearing, the Court noted that it considered the presentence investigation report, and determined that the total offense level was 38 and that the criminal history category of VI applied, yielding a guideline range prison term of 360 months to life. (Sentencing Tr. at 14-15, ECF No. 521.) The Court found no basis for a departure from the guidelines range of sentence. The Court explained that based on the conviction of conspiracy to distribute 1, 000 kilograms or more of marijuana (count 2) and the Petitioner’s prior convictions, the Court must sentence Petitioner to life in prison, pursuant to 21 U.S.C. § 841(b)(1)(A), U.S.S.G. § 5G1.1(b). (Sentencing Tr. at 15-17.)
Petitioner unsuccessfully appealed the conviction. Pelletier, 666 F.3d at 3. On appeal, the First Circuit addressed several evidentiary issues, the jury instructions, and the drug quantity finding. More specifically, the Court held that the trial court did not err in admitting Hafford’s testimony that Petitioner was in jail “‘for drug charges, ’” or in admitting the cross-examination testimony of another witness about Petitioner’s criminal past, id. at 5; that the trial court did not abuse its discretion in admitting Easler’s hearsay statements to Hafford, because the statements were admissible as sufficiently corroborated statements against penal interest, pursuant to Fed.R.Evid. 804(b)(3), id. at 7-9; that Easler’s statements to Hafford were not testimonial hearsay and, therefore, were not subject to the Confrontation Clause of the Sixth Amendment to the United States Constitution, id. at 9-10; that because the evidence of Petitioner’s knowledge and intent as to both importation and distribution of marijuana was “overwhelming, ” the trial court did not err when it did not instruct the jury that the importation had to have been knowing and intentional and that the Government had to prove that Petitioner knew that the marijuana came from outside the United States, id. at 10-11; and that “[s]ufficient evidence existed for a reasonable jury to have found beyond a reasonable doubt that Pelletier conspired to import and possess with the intent to distribute 1, 000 kilograms or more of marijuana, ” id. at 12. The Supreme Court denied Petitioner’s petition for a writ of certiorari on May 29, 2012. Pelletier v. United States, 132 S.Ct. 2683 (2012).
Petitioner signed his initial section 2255 motion on May 24, 2013, and it was filed on May 30, 2013. (Motion, ECF No. 682.) The Government agrees that the initial motion was filed timely. (Response, ECF No. 703 at 41.) The Government, however, argues that two new claims in the amended motion were not included or alluded to in the initial motion and, therefore, were not timely filed. (Response at 42.) The two claims that the Government challenges as time-barred are (a) that counsel failed adequately to investigate and cross-examine witness Kendra Cyr, and (b) that counsel failed to object to witness-vouching by the Government and the Court. (Response at 42.)
Petitioner also argues that counsel was ineffective for failing to move for dismissal of the indictment based on the fact that the conspiracy counts contained in the indictment failed to allege conspiratorial agreements. (Reply, ECF No. 709 at 1, 7, 27.) In support of his motion, Petitioner filed his own affidavit and an affidavit signed by co-defendant Michael Easler. (Affidavits, ECF Nos. 709-2, 709-3.) Both affiants assert that there was no conspiratorial agreement.
Petitioner’s second motion to amend was filed May 19, 2014, and Petitioner argues in the motion that the Supreme Court’s ruling in Alleyne v. United States, 133 S.Ct. 2151 (2013), applies retroactively and entitles him to a jury determination that he committed the prior felonies that resulted in a mandatory life sentence. (Motion to Amend, ECF No. 710 at 3.)
A. Standard of Review
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”; and (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). Here, given that Petitioner alleges ineffective assistance of counsel, and given that Petitioner’s right to counsel is guaranteed by the Sixth Amendment, Petitioner argues that the sentence was imposed in violation of “the Constitution or laws of the United States.”
The burden is on the section 2255 petitioner to 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 habeas petition is not a substitute for an appeal. Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “Accordingly, 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.” Id. at 127-28. An allegation of ineffective assistance of counsel can excuse a procedural default, but only if the petitioner demonstrates that counsel’s representation fell below an objective standard of reasonableness and prejudiced the petitioner’s defense. Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007). Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010).
To succeed on an ineffective assistance of counsel claim, a petitioner “must establish 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.” Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). The two prongs of the ineffective assistance test are commonly referred to as the “cause” and “actual prejudice” tests. Bucci v. United States, 662 F.3d 18, 29 (1st Cir. 2011). A district court reviewing such claims 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.
As for the “cause” test, the court must be “‘fairly tolerant’” of counsel’s performance because the Constitution does not guarantee a perfect defense. Moreno-Espada v. United States, 666 F.3d 60, 65 (1st Cir. 2012) (quoting Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994)). The issue is whether counsel’s performance was “‘within the wide range of reasonable professional assistance’ that a competent criminal defense counsel could provide under ‘prevailing professional norms.’” Bucci, 662 F.3d at 30 (quoting Strickland, 446 U.S. at 688-89). “Judicial scrutiny of the defense counsel’s performance is ‘highly deferential, ’ and the defendant must overcome a ‘strong presumption . . . that, under the circumstances, the challenged action “might be considered sound trial strategy.”’” Id. (quoting Strickland, 446 U.S. at 689).
The “actual prejudice” test requires a showing “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The court must consider “the totality of the evidence before the judge or jury” when measuring the prejudicial effect. Stephens v. Hall, 294 F.3d 210, 218 (1st Cir. 2002). Factors that are commonly considered include the strength of the prosecution’s case, the effectiveness of the defense presented at trial, and the potential for new evidence and new avenues for cross-examination to undermine the credibility of Government witnesses. Turner, 699 F.3d at 584.
“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 56 (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002)). 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”).
B. Grounds Asserted and Analysis
Petitioner’s motion contains sixteen numbered grounds for relief, all of which grounds contain claims of ineffective assistance of counsel. A principal area about which Petitioner complains is the nature and quality of the evidence of the drug quantity involved. In essence, Petitioner maintains that Hafford provided perjured testimony, and that his counsel did not effectively challenge the testimony. Petitioner contends that Hafford’s credibility as to the drug quantity is of critical importance because the large drug quantity in this case, together with Petitioner’s prior felony convictions, led to his life sentence.
1. Claims Relating to the Drug Quantity
a. Hafford’s alleged perjury (Grounds IV, XVI)
Petitioner argues that the Government deliberately elicited perjured testimony from Hafford or willingly permitted false testimony to remain uncorrected, and that his counsel was ineffective for failing to emphasize the misrepresentations. (Motion at 40.) As support for his contention, Petitioner cites inconsistencies in Hafford’s testimony offered on three occasions: the June 2006 grand jury testimony preceding Petitioner’s indictment (ECF No. 682-2); the April 2007 trial of Archie Ladner (ECF Nos. 682-3, 682-4); and the July 2007 trial of Petitioner. The alleged inconsistencies involve the following: (1) a jailhouse conversation between Petitioner and Hafford about Hafford working for Petitioner after they were released; (2) Hafford’s work for Petitioner, particularly the cross-border swims; (3) Hafford’s cocaine smuggling, which Hafford testified did not involve Petitioner and for which Petitioner was not charged; (4) Hafford’s personal drug use; and (5) Hafford’s observation of Petitioner giving $50, 000 in cash for real estate.
When a prosecutor “knowingly use[s] perjured testimony or, equivalently, knowingly fail[s] to disclose that testimony used to convict the defendant was false, ” the conviction is deemed “‘fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’” United States v. Rodriguez, 162 F.3d 135, 146 (1st Cir. 1998) (quoting Kyles v. Whitley, 514 U.S. 419, 433 n.7 (1995)); see also Moreno-Morales, 334 F.3d at 148. As the First Circuit explained in Rodriguez, the standard was articulated in United States v. Agurs, 427 U.S. 97, 103 (1976) and is “more favorable to the defendant” than the standard, set forth in Brady v. Maryland, 373 U.S. 83 (1963), that applies “when the prosecution suppresses material evidence that is favorable to the accused.” Rodriguez, 162 F.3d at 146 (quotation marks omitted). In a section 2255 petition, the burden is on the petitioner to demonstrate “that the Government knowingly used perjured testimony to convict him.” Moreno-Morales, 334 F.3d at 148. Even if the Government commits misconduct, due process is not offended if there is ample untainted evidence on which to support the conviction. See Id . at 148-49.
i. The jailhouse conversations
Petitioner argues that Hafford’s testimony constitutes perjury because Hafford testified before the grand jury that during a conversation that he had with Petitioner in jail regarding work after their release from jail, Petitioner did not mention selling marijuana, but in the Ladner trial, Hafford testified that drugs were discussed. (Motion at 40-42.)
The record reflects that at the grand jury, Hafford was not asked drug-specific questions. His grand jury testimony, therefore, is not in conflict with his trial testimony that “[t]here was some weed involved” in the jailhouse conversation. (Grand Jury Tr., ECF No. 682-2 at 4; Trial Tr., ECF No. 308 at 67.) In fact, when examined by Petitioner’s counsel at trial, Hafford acknowledged that when they spoke, Petitioner was not clear whether he intended to provide Hafford with a job that involved drug trafficking. (Trial Tr., ECF No. 308 at 139.) Petitioner has thus failed to demonstrate that Hafford’s testimony was perjured, or that the performance of Petitioner’s counsel was substandard. See Strickland, 466 U.S. at 687.
Petitioner also asserts that Hafford falsely testified when he stated in the Ladner trial that Petitioner never told him in their jailhouse conversation that Petitioner previously had engaged Easler to swim the river. (Motion at 44, 79.) Petitioner maintains that Hafford testified differently in his trial, and that his counsel did not effectively cross-examine Hafford on this point.
Petitioner misconstrues Hafford’s testimony regarding the jailhouse conversation. Hafford testified in the Ladner trial that his conversation with Petitioner occurred when he was in jail in 2001 and possibly into early 2002. Hafford’s testimony is not inconsistent, given that Easler’s swims for Petitioner occurred after Petitioner’s incarceration in 2001 and 2002. (Trial Tr., ECF No. 308 at 179.) That is, the record reflects that Hafford learned about Easler’s relationship with Petitioner in or around June 2004. (Ladner Tr., ECF No. 682-3 at 16, 19; Trial Tr., ECF No. 308 at 68-70) The 2001-2002 jailhouse conversation, therefore, occurred before Easler started to work with Petitioner. Accordingly, Petitioner’s contention that the Government presented perjured testimony, or that Petitioner’s counsel was ineffective, must fail.
ii. The cross-border smuggling trips
Petitioner asserts that Hafford’s testimony regarding several aspects of the smuggling trips was perjured testimony. First, Petitioner cites Hafford’s testimony regarding the amount of money that he had when he was stopped at customs. According to Petitioner, Hafford told police that Petitioner had $180, 000 when he was stopped by customs, but actually Hafford did not know how much money Petitioner had at that time. (Motion at 45.) Contrary to Petitioner’s contention, Hafford did not testify in the Ladner trial that Petitioner had a certain amount of money. Rather, Hafford testified that Petitioner told him that he had $180, 000 inside the seat of his vehicle, and although Hafford did not believe that the seat could accommodate that much cash, Hafford shared the information with law enforcement. (Ladner Tr., ECF No. 682-4 at 7-8.) In other words, Hafford testified as to information that he obtained from Petitioner, and did not testify as to the amount of money that Petitioner actually had in his possession.
Petitioner also argues that Hafford’s testimony is inconsistent regarding the time that Hafford started to make the swims,  whether Petitioner was always on the Canadian side with Hafford at the time of the swims,  the frequency with which Hafford participated in the swims, and the amount of marijuana that he carried during the swims. Assuming, arguendo, that some inconsistency exists in Hafford’s testimony, the inconsistencies are not material because the record contains an abundance of evidence that Petitioner himself crossed the border to import marijuana; these instances include one occasion when Hafford hid in the back of Petitioner’s truck and another occasion when Petitioner was stopped and searched at customs. (Trial Tr., ECF No. 308 at 73, 142-43.)
Hafford’s grand jury testimony about his trips for Petitioner differed to some degree from his trial testimony. Indeed, at Petitioner’s trial, Hafford admitted that when he testified before the grand jury he exaggerated the frequency of his swims, the number of times he went across the river, and the amount of drugs that he carried. (Motion at 41; Trial Tr., ECF No. 308 at 165-66.)Despite Hafford’s exaggerations, the record is devoid of evidence that the Government knowingly ...