United States District Court, D. Maine
USA, Plaintiff, (2:00-cr-00077-GZS-1): HELENE KAZANJIAN, MARGARET D. MCGAUGHEY, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE, PORTLAND, ME.
MITCHELL WALL, Petitioner, (2:15-cv-00056-GZS), Pro se, WHITEDEER, PA.
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
John C. Nivison, United States Magistrate Judge.
In this action, pursuant to 28 U.S.C. § 2255, Petitioner Mitchell Wall seeks relief from his sentence in United States v. Wall, No. 2:00-cr-00077-GZS. (Motion, ECF No. 90.) Petitioner argues that he is entitled to relief based on the Supreme Court's decision in Burrage v. United States, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). (Motion at 4-5.)
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. Wall, 349 F.3d 18 (1st Cir. 2003). In 2001, a jury found Petitioner guilty of cocaine distribution resulting in the death of another, after he had been convicted of a felony drug trafficking offense. Id. at 20; Jury Verdict, No. 2:00-cr-00077-GZS, ECF No. 39. In 2002, the Court sentenced Petitioner to a term of life in prison, followed by a term of six years of supervised release. (Judgment, ECF No. 60.) Petitioner was also separately indicted, tried by a jury, and convicted of participating in a scheme to defraud Medicaid involving oxycodone. He was sentenced in the fraud case to a term of 262 months, to be served concurrently with the life sentence, followed by a term of six years of supervised release, to be served concurrently with the supervised release on the cocaine distribution sentence. (Judgment, No. 2:00-cr-00078-GZS, ECF No. 52.)
Petitioner raised several issues on appeal, including an issue regarding the Court's jury instruction on causation. 349 F.3d at 23-24. The Court instructed the jury that to find that the " death resulted from the use of cocaine that the defendant distributed, " it must find beyond a reasonable doubt that the victim " died as a consequence of her use of the cocaine that the defendant distributed on or about the dates alleged in the indictment, " and find that " the evidence establishes beyond a reasonable doubt that the use of that cocaine played a significant causal role in bringing on the death" of the victim. Id. (emphasis added). Defense counsel " specifically requested the 'significant causal role' language" at trial, but Petitioner argued on appeal that the instruction understated the Government's burden of proof. Id. at 24. He also argued that he was entitled to an additional instruction that " there was no intervening or superseding cause of death." Id. at 24.
Although the First Circuit determined that Petitioner waived the issue when he consented to the instruction at trial, the Court nevertheless addressed the merits of Petitioner's argument. Id. The Court concluded that " an instruction requiring jurors to find a 'significant' causal relationship suggests a higher, rather than lower, burden of proof, " and on that basis it concluded that if it were to review the matter for plain error, Petitioner's argument would fail. Id. at 25. The First Circuit also concluded that the trial court was not required to administer an intervening cause instruction because Petitioner had identified " no evidence in the record that would permit a conclusion that another substance, rather than cocaine, was responsible" for the victim's death. Id. The Supreme Court denied Petitioner's petition for a writ of certiorari on March 29, 2004. Wall v. United States, 541 U.S. 965, 124 S.Ct. 1727, 158 L.Ed.2d 410 (2004).
On March 17, 2005, Petitioner signed his first 28 U.S.C. § 2255 motion, and the motion was filed on March 21, 2005. (No. 2:05-cv-00053-GC, ECF No. 1.) In that motion, Petitioner challenged the sentence in the cocaine distribution case based on a number of claims of ineffective assistance of counsel,  which claims included counsel's failure to investigate the facts and the law on the causation issue. (Amended Recommended Decision, No. 2:05-cv-00053-GC, ECF No. 36 at 12-15.) The Court concluded that counsel's performance was not constitutionally inadequate. (Id. at 14-15; Order, ECF No. 40; Judgment, ECF No. 42.) The First Circuit granted a certificate of appealability as to two of Petitioner's ineffective-assistance claims, neither of which is at issue in the pending motion. The First Circuit affirmed this Court's decision. (Judgment and Mandate, No. 06-1235 (1st Cir. Jan. 31, 2007); No. 2:05-cv-00053-GC, ECF No. 53.) The Supreme Court subsequently denied Petitioner's petition for a writ of certiorari. Wall v. United States, 552 U.S. 905, 128 S.Ct. 220, 169 L.Ed.2d 179 (2007).
In 2007, Petitioner filed, and this Court denied, a petition pursuant to 28 U.S.C. § 2254, " challenging the denial, on statute of limitations grounds, of three state post-conviction proceedings seeking to set aside state convictions stemming from 1985, 1990, and 1993 criminal charges . . . ." ( Wall v. State of Maine, Recommended Decision, No. 2:07-cv-00161-GZS, ECF No. 4; Order and Judgment, ECF Nos. 7, 8.) The First Circuit denied a certificate of appealability noting that Petitioner was serving his federal sentence, and the state sentences had expired. (No. 2:07-cv-00161-GZS, ECF No. 20; No. 07-2712 (1st Cir. Apr. 4, 2008).) The First Circuit also denied the application " as an implicit request for our authorization to file a second motion under 28 U.S.C. § 2255(h)(1)." Id. The Supreme Court denied Petitioner's petition for a writ of certiorari. Wall v. Maine, 555 U.S. 877, 129 S.Ct. 187, 172 L.Ed.2d 133 (2008).
In 2010, Petitioner filed an application in the First Circuit for leave to file a second or successive section 2255 motion. (Application, No. 10-1743.) Among other issues, he argued that counsel failed to challenge the jury instructions. (Id. at 3.) The First Circuit denied the application. (No. 2:05-cv-00053-GC, ECF No. 54 (1st Cir. July 1, 2010).)
In 2011 and early 2012, Petitioner filed two petitions, pursuant to 28 U.S.C. § 2241, in the United States District Court for the Middle District of Pennsylvania. ( Wall v. Holt, No. 3:11-cv-02003-EMK, Recommended Decision, ECF No. 21 at 7; Order, ECF No. 44.) In 2013, the recommended decision noted that the petitions " closely resembled [Petitioner's] application for a second or successive § 2255 motion which was rejected by the First Circuit in 2010." (Recommended Decision, ECF No. 21 at 7.) In December 2014, following a stay that had been granted pending issuance of the Supreme Court's decision in Burrage, the Court adopted the recommended decision. (Recommended Decision, ECF No. 21; Orders Granting and Lifting Stay, ECF Nos. 25, 29; Order, ECF No. 44.) The Court also held that " [t]he determination whether Petitioner's claims fall within the purview of § 2255 would be in a properly framed request to file a second or successive motion for relief under 28 U.S.C. § 2255 in the Court of Appeals for the First Circuit, and not pursuant to a § 2241 petition." (Memorandum, ECF No. 43 at 6.) Thus, the two section 2241 petitions that Petitioner filed in Pennsylvania were dismissed for lack of jurisdiction. (Order, ECF No. 44.)
In 2013, Petitioner filed a motion seeking review based on Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). (No. 2:00-cr-00077-GZS, ECF No. 75.) This Court construed the motion as a second or successive section 2255 motion and dismissed it without prejudice to Petitioner's right to file an application in the First Circuit for leave to file the motion. (No. 2:00-cr-00077-GZS, ECF Nos. 76 at 1-2, 77, 80.) The First Circuit denied the application, holding that neither of the Supreme Court decisions established a " new rule ...