United States District Court, D. Maine
Lawrence Maher, Plaintiff, Pro se, Butner, NC, USA.
RECOMMENDED DECISION ON 28 U.S.C. § 2241 MOTION
John C. Nivison, United States Magistrate Judge.
Citing 28 U.S.C. § 2241, Petitioner Lawrence Maher filed a motion seeking relief from his sentence in United States v. Maher, No. 2:04-cr-00093-GZS. (No. 2:15-cv-00040-GZS, ECF No. 1.) Petitioner complains that because the Bureau of Prisons relied on inaccurate information in the presentence investigation report regarding Petitioner's possession of a firearm during the drug offense for which he was convicted, Petitioner has been wrongly denied certain programs and benefits while incarcerated. (Id. at 2.)
After review of the motion and the record, in accordance with Rule 4(b) of the Rules Governing Section 2255 Proceedings, given that Petitioner's motion is subject to the gatekeeping provisions of 28 U.S.C. § § 2244, 2255(h), the recommendation is that the Court dismiss the motion without requiring the Government to answer.
I. Factual Background and Procedural History
The First Circuit Court of Appeals recounted in detail the facts underlying Petitioner's conviction. United States v. Maher, 454 F.3d 13, 15 (1st Cir. 2006). While he was under surveillance in a sting operation, Petitioner was arrested in 2004 for the state crime of operating under the influence. Id. Police officers searched Petitioner's van, incident to his arrest, and found heroin, cocaine, and drug paraphernalia. Id. Following a two-day jury trial in December 2004, Petitioner was convicted of the federal crime of possession of cocaine with intent to distribute 163 grams of cocaine. Id. ( United States v. Maher, No. 2:04-cr-00093-GZS, Verdict Form, ECF No. 43; Judgment, ECF No. 51 at 1.) See 21 U.S.C. § 841(a)(1).
At sentencing, the Court found " the facts as set forth in the presentence report as amended, " and further determined that " the defendant possessed a firearm during the offense. This relates to the earlier sale to the confidential informant as set forth in the presentence report." (Sentencing Tr., ECF No. 60 at 20.)The Court sentenced Petitioner to a term of 262 months in prison, followed by a term of six years of supervised release. (Judgment at 2-3.) Petitioner appealed from the conviction, which the First Circuit affirmed; it does not appear that Petitioner appealed his sentence. 454 F.3d at 15, 24.
Petitioner filed his first motion under 28 U.S.C. § 2255 in November 2007. (No. 2:07-cv-00195-GZS.) In that motion, Petitioner raised four claims of ineffective assistance of counsel: (1) failure to interview or call material witnesses; (2) conflict of interest; (3) failure to object to the admission of hearsay testimony; and (4) failure to object to the characterization of a prior state misdemeanor drug conviction as a controlled substance offense under the United States Sentencing Guidelines § 4B1.2(b). (Id., ECF No. 1.) In July 2008, the Court affirmed a recommended denial of relief, and in July 2009, the First Circuit denied a certificate of appealability. (Id., ECF Nos. 10, 16, 28; No. 08-2087 (1st Cir. Apr. 9, 2009).)
In July 2009, Petitioner filed a second motion pursuant to 28 U.S.C. § 2255; Petitioner also included in this motion a request for a sentencing modification under 18 U.S.C. 3582(c)(1)(B). (No. 2:09-cv-00321-GZS, ECF No. 1; No. 2:04-cr-00093-GZS, ECF No. 73.) The Court affirmed the recommended decision to dismiss without prejudice Petitioner's section 2255 motion because he had not first obtained certification from the First Circuit. (No. 2:09-cv-00321-GZS, ECF Nos. 2, 3.) The Court denied the section 3582 request to modify the sentence, and in May 2010, the First Circuit affirmed the denial. (No. 2:04-cr-00093-GZS, ECF Nos. 74, 87; No. 09-2147 (1st Cir. May 7, 2010).)
In November 2010, Petitioner filed a motion for relief from judgment, seeking to challenge the denial of a motion to suppress. (No. 2:04-cr-00093-GZS, ECF No. 90.) The Court denied the request. (Id., ECF No. 92.) In January 2011, the First Circuit denied leave to file a second or successive section 2255 motion, and also determined that Petitioner's sentence as a career offender was not in error. (Id., ECF No. 93: No. 10-2440 (1st Cir. Jan. 19, 2011).)
In August 2012, Petitioner filed a motion for relief from the judgment regarding his first section 2255 motion. (No. 2:07-cv-00195-GZS, ECF No. 29.) At that time, Petitioner sought to revisit one of his claims of ineffective assistance of counsel in light of Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). In October 2012, the Court affirmed a recommended denial of relief, and in April 2014, the First Circuit denied a certificate of appealability. (Id., ECF Nos. 30, 32, 41; No. 12-2347 (1st Cir. Apr. 16, 2014).)
In May 2014, Petitioner filed a motion to amend the presentence investigation report. (No. 2:04-cr-00093-GZS, ECF No. 94.) The Court dismissed the motion for lack of jurisdiction and alternatively because the motion was meritless. (Id., ECF No. 97.)
Petitioner filed the pending motion on January 26, 2015. ( Maher v. United States Bureau of Prisons, No. ...