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 ...