August 22, 2014
PATRICIA MORRISON, Petitioner,
UNITED STATES OF AMERICA, Respondent
Defendant (4) PATRICIA MORRISON represented by PATRICIA MORRISON PRO SE DAVID R. BENEMAN FEDERAL DEFENDER'S OFFICE LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Public Defender or Community Defender Appointment
Plaintiff USA represented by DANIEL J. PERRY U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE, DONALD E. CLARK U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE MARGARET D. MCGAUGHEY U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE LEAD ATTORNEY
RECOMMENDED DECISION ON 28 U.S.C. § 2255 and 18 U.S.C. § 3582 MOTION
JOHN C. NIVISON U.S. MAGISTRATE JUDGE
In this action, Petitioner Patricia Morrison filed a motion pursuant to 28 U.S.C. § 2255 and 18 U.S.C. § 3582. (Motion, ECF No. 358.) Through her motion, Petitioner asserts four grounds for relief: (1) that Petitioner’s plea was not knowing and voluntary, due to her drug addiction issues at the time; (2) that Petitioner received ineffective assistance of counsel with respect to the indictment, the plea, and sentencing; (3) that Alleyne v. United States, 133 S.Ct. 2151 (2013) is retroactively applicable to Petitioner’s sentence and requires that the drug quantities that impacted the sentence be found by a jury; (4) and that Petitioner’s sentence should be reduced because she has undergone rehabilitation. The Government requests a summary dismissal of Petitioner’s motion. (Response, ECF No. 370.)
After a review of Petitioner’s motion, the Government’s request for dismissal, and Petitioner’s response to the Government’s request, the recommendation is that the Court grant the Government’s request, and dismiss Petitioner’s motion.
I. Factual Background and Procedural History
Petitioner was indicted on three counts of an eight-count indictment involving five defendants. In Count one, which is the only count on which Petitioner was convicted, the Government charged that between December 2006 and February 2008, Petitioner and four other defendants conspired to distribute and possess with intent to distribute 50 grams or more of cocaine base. (Second Superseding Indictment, ECF No. 12 at 1.) The Court accepted Petitioner’s guilty plea at a change-of-plea hearing in December 2008; there was no plea agreement. (Fed. R. Crim. P. 11 (Rule 11) Tr., ECF No. 366 at 13, 16.) At sentencing, Petitioner did not contest the Court’s determination that the guideline range was 292 to 365 months in prison. The Court sentenced Petitioner in April 2009 to a term of 180 months, followed by five years of supervised release. (Sentencing Tr., ECF No. 367 at 39; Judgment, ECF No. 238 at 2-3.) The other two counts against Petitioner were dismissed on the Government’s motion. (Id. at 1.) Petitioner did not appeal.
Petitioner filed three pro se post-conviction motions before filing the pending motion. The first two were filed on the same date in May 2013, and requested (1) a reduction in the sentence, pursuant to the retroactive 2010 Fair Sentencing Act amendments to the crack cocaine guidelines; and (2) a review of Petitioner’s sentence pursuant to a case entitled “Simmons v. U.S.” for which Petitioner did not provide a citation. (Motions, ECF Nos. 349, 350.) The Court denied both motions, concluding that (1) the guideline amendments would not benefit Petitioner because her total offense level and guideline sentencing range remained the same after the sentencing amendments; and (2) the case that Petitioner probably intended to cite, United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), was not applicable because Simmons pertained to career offenders, but Petitioner was not sentenced as a career offender. (Order, ECF No. 351.)
In July 2013, Petitioner filed a third motion for a sentence reduction, in which motion she asked the Court to remove the gun enhancement that applied when she was sentenced in 2009. (Motion, ECF No. 354.) The Court determined that it had “no authority to remove the enhancement or reduce her sentence” under either Fed. R. Crim. P. 35 or 18 U.S.C. § 3582(c), and denied the motion. (Order, ECF No. 355.)
Petitioner signed the pending motion on November 4, 2013, and it was filed on November 7, 2013.
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 essentially argues that the sentence was imposed in violation of “the Constitution or laws of the United States.” A section 2255 petitioner has the burden to establish by a preponderance of the evidence that he or she is entitled to 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 a claim of ineffective assistance of counsel, 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.
“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)).
B. Grounds Asserted and Analysis
1. Request for a sentence reduction pursuant to 18 U.S.C. §3582
Petitioner seeks a modification of her sentence pursuant to 18 U.S.C. §3582. Her request is focused on the two-level gun enhancement and the three-level managerial enhancement. (Motion at 3; Sentencing Tr., ECF No. 367 at 39.) Petitioner previously moved for a sentence reduction based on the gun enhancement issue, and based on Petitioner’s post-conviction rehabilitation. The Court denied the motion. The issue of the gun enhancement thus has been decided and, therefore, is barred by the law-of-the-case doctrine. See United States v. Henry, 519 F.3d 68, 76 (1st Cir. 2008) (holding that an issue decided on summary disposition could not be relitigated in a later stage of the litigation).
Petitioner’s other arguments in favor of a sentencing modification are governed by section 3582(c), which provides that “[t]he court may not modify a term of imprisonment once it has been imposed.” The statute provides for three exceptions. The first exception is when the Bureau of Prisons moves to reduce the term of imprisonment and certain other conditions are met. 18 U.S.C. § 3582(c)(1)(A). The Bureau of Prisons has not moved for a sentence reduction in this case.
The second exception permits the Court to “modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” See Id . § 3582(c)(1)(B). This exception does not apply here because Petitioner does not cite to any such statute, and the factual record does not suggest that any such statutory relief is available. Fed. R. Crim. P. 35 is also inapplicable; Rule 35(a) applies to clerical errors found within seven days after sentencing,  and Rule 35(b) applies when the Government moves for a sentencing reduction based on the defendant’s “substantial assistance in investigating or prosecuting another person.” The Government did not move for a sentencing reduction based on Petitioner’s substantial assistance. In fact, Petitioner attached to her motion a letter from counsel to her stating that she did not cooperate with the Government. (Letter, ECF No. 359 at 2.)
The third exception applies when the sentencing range has been lowered by the Sentencing Commission. See Id . § 3582(c)(2). To the extent that Petitioner’s motion contains a request pursuant to section 3582(c)(2), based on amended sentencing guidelines, that request is premature because the amendments are not yet in effect. If those amendments, promulgated pursuant to 28 U.S.C. § 994, go into effect on November 1, 2014, pursuant to 28 U.S.C. § 994(p), Plaintiff might have the opportunity to seek a modification in accordance with any applicable amendment, pursuant to 18 U.S.C. § 3582(c)(2).
Section 3582 does not provide this Court with authority to grant Petitioner’s remaining requests, i.e., the request that the Court reduce her sentence by eliminating the managerial enhancement, and that it reduce her sentence based on her rehabilitation. (Motion at 3-4; Attachments, ECF Nos. 358-1, 377, 377-1.) Neither of these arguments falls within the three exceptions explained above.
In short, therefore, Petitioner is not entitled to relief under § 3582.
2. Claims pursuant to 28 U.S.C. §2255
a. Timeliness of the section 2255 motion
Petitioner’s motion asks the Court to “[v]acate, set aside and or remand” her sentence, pursuant to 28 U.S.C. § 2255. A section 2255 motion is subject to a one-year limitations period, pursuant to section 2255(f), which states:
A 1–year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Petitioner’s motion was not filed timely under section 2255(f). Petitioner did not satisfy the requirements of subsection 2255(f)(1) because she filed the motion more than a year after the judgment of conviction became final; in fact, Petitioner acknowledges that she did not file within one year of the date on which the judgment became final. (Motion at 2.) Subsection 2255(f)(2) is not applicable because Petitioner has not presented any facts to suggest that the Government caused an impediment that precluded her from timely filing the motion. Subsection 2255(f)(4) is also inapplicable because Petitioner does not assert newly-discovered facts as a basis for the motion.
The remaining issue is whether the Court can consider Petitioner’s motion under subsection 2255(f)(3). Petitioner argues that the recent Supreme Court case of Alleyne grants Petitioner a Sixth Amendment right to a jury trial on all of the facts used to determine her sentence. She claims that her right to a jury trial was violated because the drug quantity and the gun enhancement findings were based on the court’s sentencing findings rather than a jury’s findings. (Motion at 4.)
If Alleyne applied, Petitioner’s motion would have been timely filed, pursuant to section 2255(f)(3), because the motion was filed within one year of the June 2013 decision in Alleyne. Alleyne, however, does not apply to the facts of this case.
In Alleyne, the Supreme Court “extended the rule requiring a jury to find, beyond a reasonable doubt, any fact that increases a maximum statutory penalty to any fact that requires imposing a statutory minimum penalty.” United States v. Doe, 741 F.3d 217, 233 (1st Cir. 2013) (emphasis added) (citing Alleyne, 133 S.Ct. at 2160). Here, the sentence imposed on Petitioner was based on sentencing guideline considerations. See United States v. Ramírez-Negrόn, 751 F.3d 42, 48 (1st Cir. 2014) (“[F]actual findings made for purposes of applying the Guidelines, which influence the sentencing judge’s discretion in imposing an advisory Guidelines sentence and do not result in imposition of a mandatory minimum sentence, do not violate the rule in Alleyne.”)The statutory minimum was triggered not by facts proven by a preponderance of the evidence at sentencing, but rather by Petitioner’s conviction of the drug quantity charged in the indictment. (Second Superseding Indictment at 1.)
In addition, the First Circuit has held that when the drug quantity that prompts a mandatory minimum term of imprisonment is admitted as part of a guilty plea, Alleyne does not apply. See Ramírez-Negrόn, 751 F.3d at 44 (holding that there is no Alleyne error when “all elements of the defendants’ crimes of conviction . . . were admitted as part of the guilty pleas”). In the plea colloquy, Petitioner told the Court that she understood that the charge on count one involved 50 grams or more, and she pled guilty to that drug quantity. (Rule 11 Tr. at 8, 12-13; Government’s Version, ECF No. 156 at 3.) Petitioner thus admitted to the drug quantity that resulted in the statutory mandatory minimum at her plea hearing, and she admitted the accuracy of the revised presentence investigation report at her sentencing. She may not now dispute those facts. See United States v. Booker, 543 U.S. 220, 244 (2005) (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”); United States v. Wilson, 185 Fed. App’x 6, 8 (1st Cir. 2006) (per curiam). Alleyne, therefore, does not assist Petitioner even though the Court found as a fact at sentencing that Petitioner was responsible for 2.97 kilograms, i.e., an amount that was based on the undisputed revised presentence investigation report but that was in excess of the minimum of 50 grams alleged in the indictment. (Sentencing Tr., ECF No. 367 at 4-5, 39.) For purposes of the Alleyne analysis, the relevant fact is that the drug quantity upon which Petitioner entered the plea and to which quantity she admitted was within the range of ten years to life that was authorized under the version of 21 U.S.C. § 841(b)(1)(A) then in effect.
Finally, even if Alleyne was in some way applicable to the facts of this case, the First Circuit has applied Alleyne retroactively only in cases that were “‘pending on direct review or not yet final . . . .’” United States v. Delgado-Marrero, 744 F.3d 167, 185 (1st Cir. 2014) (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Petitioner did not appeal the conviction, and thus there was no direct review and the case was final when Alleyne was decided in June 2013. Alleyne, therefore, would not apply to this case even if it were otherwise relevant.
Based on the foregoing analysis, no evidentiary hearing is warranted under Rule 8 of the Rules Governing Section 2255 Cases. It is recommended that the Court deny Petitioner’s motion for habeas relief under 28 U.S.C. § 2255 and 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). It is recommended that the Court deny Petitioner’s (Sentencing Tr., ECF No. 367 at 4-5.) However, that need not have been the case; contested facts may be resolved by the sentencing court by a preponderance of the evidence, as long as those facts do not trigger a statutory minimum or increase a statutory maximum. See Doe, 741 F.3d at 234.request for a sentence reduction under 18 U.S.C. § 3582. It is also recommended that to the limited extent that Petitioner’s section 3582 motion is based on amended sentencing guidelines that are not yet in effect, the Court deny the motion without prejudice. As to all other claims under either 28 U.S.C. §2255 or 18 U.S.C. § 3582, it is recommended that the Court deny Petitioner’s motion with prejudice.