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Kelsic v. United States

United States District Court, D. Maine

April 9, 2015

MIKOL KELSIC, Petitioner,


JOHN C. NIVISON, Magistrate Judge.

Petitioner Mikol Kelsic has filed three motions, which are currently pending before the Court. Petitioner first filed a motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. §2255. (Motion, ECF No. 88.) After the Government responded by asking that Petitioner's section 2255 motion be summarily dismissed (Response, ECF No. 105), Petitioner requested dismissal of his section 2255 motion without prejudice on grounds that he is "too busy" to respond. (Reply, ECF No. 117.) Petitioner also filed a motion for a sentence correction based on an alleged "clerical error." (Motion ECF No. 118.) Petitioner later filed a motion for a default judgment on his motion for a sentence correction. (Motion, ECF No. 124.)[1]

As explained below, following a review of the pleadings, and after consideration of the parties' arguments, the recommendation is that the Court deny the motions.


Petitioner was arrested on May 10, 2012, on an indictment for conspiracy to distribute and to possess with intent to distribute various controlled substances, including cocaine, cocaine base, heroin, and oxycodone. (Indictment, ECF No. 3.) A superseding indictment charged an unspecified amount of cocaine, 28 grams or more of cocaine base, 100 grams or more of heroin, and an unspecified amount of oxycodone. (Superseding Indictment, ECF No. 19 at 1.)

In September 2012, pursuant to a plea agreement, Petitioner pled guilty to the superseding indictment. (Plea Agreement, ECF No. 44; Minute Entry, ECF No. 48.) During the plea colloquy, Petitioner told the Court that he understood the charges in the superseding indictment and that counsel had explained the possible penalties, which, the Court explained, included a term of imprisonment of not less than five years and not more than forty years. (Plea Tr., ECF No. 98 at 5-6.) The Court further explained that by pleading guilty, Petitioner would give up his right to a trial and trial-related rights, as well as the right of appeal, except in very limited circumstances. (Id. at 7-8.)

In response to the Court's questions, Petitioner told the Court that he had reviewed the prosecution version of the facts, he understood it, and that the version was true to his personal knowledge. (Id. at 10.) The prosecution version asserts that Petitioner's co-defendant, Peter Risko, supplied cocaine base, heroin, cocaine and fraudulent prescriptions for oxycodone to multiple people in Maine between August 2011 and March 2012, and that Petitioner was a courier for Risko. (Prosecution Version, ECF No. 47 at 1.) Based on Petitioner's admission, counsel's statement that he reviewed the prosecution version with Petitioner and was satisfied that the Government could produce the evidence contained in the prosecution version, and that the admissible portions of the prosecution version would permit a jury to find Petitioner guilty, the Court found a factual basis for Petitioner's guilty plea. (Plea Tr. at 9-10.)

When asked by the Court whether anyone had threatened Petitioner or attempted to force him to plead guilty, Petitioner responded: "Not at all, sir." (Plea Tr. at 10.) The Court also engaged Petitioner as follows: "[T]here's nothing in this plea agreement that ties my hands with regard to what sentence I can give you. I can give you any lawful sentence; do you understand that?" Petitioner responded: "Yes, sir." (Id. at 12.) The Court told Petitioner: "I want you to know that I don't have to go along with the agreements you have made with the Government. If I refuse to go along with any or all of those agreements, I'm not going to permit you to take back your plea of guilty; do you understand?" (Id. ) Petitioner responded: "I understand." (Id. ) The Court found that Petitioner offered the plea knowingly and voluntarily, and the Court accepted Petitioner's guilty plea. (Id. 17-18.)

In May 2013, the sentencing hearing was held, at which hearing the Government recommended a sentence of 48 months. (Sentencing Tr., ECF No. 99 at 1, 13.) Based on the calculations set forth in the presentence investigation report, and incorporating a Landrón-Class downward variance based on Petitioner's cooperation, [2] Petitioner requested a sentence of 36 months. Counsel told the Court that he believed that if the Court imposed a 36-month sentence, Petitioner would likely not qualify for time off if he were to complete a residential drug abuse program, but rather Petitioner would serve the entire sentence.[3] (Id. at 17-18.)

The Court found, consistent with the presentence investigation report, that the base offense level was 30 and the total offense level was 23 after a reduction of two levels because Petitioner met the criteria for the safety valve provision, U.S.S.G. §§ 2D1.1(b)(16), 5C1.2; a reduction of two levels for Petitioner's limited role in the offense, § 3B1.2(b); and a reduction of three levels for Petitioner's acceptance of responsibility, § 3E1.1(a), (b). (Sentencing Tr. at 20.) The Court found that Petitioner's criminal history category was I, which, when combined with the total offense level of 23, yielded an advisory range of 46-57 months. (Id. ) Based on Petitioner's cooperation, the Court reduced the sentence by three months below the low end of the guidelines range. (Id. at 22.)[4] The Court thus sentenced Petitioner to a term of 43 months of imprisonment and three years of supervised release. (Judgment, ECF No. 86 at 2-3.) In accordance with Petitioner's plea agreement, Petitioner did not appeal the conviction or the sentence.

In November 2013, Petitioner filed the section 2255 motion, in which he asserted four numbered grounds, which contained six arguments for relief based on alleged ineffective assistance of counsel. First, Petitioner alleged that counsel misadvised him regarding sentencing. Specifically, he asserted that counsel was deficient because he failed to inform Petitioner that he was not eligible for the residential drug abuse treatment program and, therefore, that he could not earn an earlier release through participation in the program. (Motion at 4.) Second, Petitioner alleged that counsel failed to communicate with him and silenced his concerns about the presentence investigation report, which Petitioner maintained was inaccurate with respect to the drug quantity. (Id. at 6-8.) Third, Petitioner argued that counsel coerced him into signing a proffer agreement and withdrawing a request that he had made for new counsel. (Id. at 11-12.)[5] Fourth, Petitioner asserted a combination of ineffective assistance of counsel and prosecutorial misconduct regarding the use of inaccurate information from persons who were cooperating with the Government. (Id. ) Fifth, Petitioner alleged that counsel failed to submit complete and current evidence of Petitioner's participation in jail programs for purposes of mitigation at sentencing. (Id. at 13.) Sixth, Petitioner alleged that counsel failed to inform him of his right to a direct appeal. (Id. )

In March 2014, the Government filed a response that included a request for summary dismissal of Petitioner's section 2255 motion. (Response, ECF No. 105.) In July 2014, Petitioner filed his reply in which he requested dismissal of his section 2255 motion without prejudice. In particular, Petitioner wrote in his reply:

I have thoroughly read through and deciphered [the Government's response]. Although there are fundamental differences of opinion, factual matters, etc... I have decided that I am simply TOO BUSY planning ahead for my future (as well as finishing the final months of my incarceration) to continue to respond to my § 2255 of November 2013.

(Reply, ECF No. 117.) (emphasis in original).

In July 2014, Petitioner filed a motion to correct his sentence. (Motion to Correct Sentence, ECF No. 118.) In that motion, Petitioner asserted that he found an error in a date in some discovery he was reviewing.[6] He alleged that the discovery erroneously states that an interview of a source that Petitioner claims was co-defendant Risko took place in May 2011, when in fact, he alleges, the interview took place a year later, in May 2012.[7] (Motion to Correct Sentence, ECF No. 118 at 1.)

In August 2014, the Government filed its response to Petitioner's motion to correct the sentence. The Government argued (1) that the Court should dismiss the motion because the issue that Petitioner raised should have been included in Petitioner's section 2255 motion; (2) that the issue is time-barred, pursuant to 28 U.S.C. § 2255(f)(1), because the issue was raised for the first time after the one-year limitation period; (3) that the issue is procedurally barred; and (4) that Petitioner's argument is meritless. (Response, ECF No. 119.)

In September 2014, Petitioner filed a reply, largely reiterating the arguments that he asserted in the motion to correct the sentence. (Reply, ECF No. 120.) In February 2015, Petitioner filed a motion for a default judgment on his motion to ...

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