United States District Court, D. Maine
ORDER ON MOTION FOR RECONSIDERATION OF ORDER ON
MOTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE
A. WOODCOCK, JR. DISTRICT JUDGE
with yet another motion from Daniel Poulin filled with angry
denunciation and accusation, the Court has set aside his
hyperbolic language and addressed the merits of his motion to
reconsider a denial of a motion to reconsider a denied motion
to reconsider. Despite his characterization, it has concluded
that his motion is substantive, not procedural, and
improperly attempts to avoid the law’s prohibition
against successive § 2255 petitions. The Court denies
his latest motion to reconsider.
September 14, 2009, this Court held a bench trial and issued
a verdict finding Daniel Poulin guilty as charged of
violating 18 U.S.C. § 2251(a), which prohibits the
production of child pornography. Min. Entry (ECF No.
184). On January 27, 2010, the Court imposed on Mr. Poulin
the mandatory minimum sentence of 180 months. J.
(ECF No. 190); 18 U.S.C. § 2251(e). On January 28, 2010,
Mr. Poulin appealed his conviction on two grounds: (1) that
§ 2251(a) was unconstitutional as applied to him because
his conduct was purely personal and did not have a
substantial effect on interstate commerce; and (2) that the
Government’s evidence was insufficient to sustain a
conviction because the Government failed to show that he
“produced” sexually explicit images that traveled
interstate. United States v. Poulin, 631 F.3d 17
(1st Cir. 2011); Opinion of Ct. of Appeals for the First
Circuit at 1 (ECF No. 209). On January 7, 2011, the
First Circuit Court of Appeals affirmed his conviction,
J. of Ct. of Appeals for the First Circuit
(ECF No. 210), and on January 28, 2011, the First Circuit
issued its mandate. Mandate at 1 (ECF No. 216).
April 6, 2012, Mr. Poulin filed an extensive motion to
vacate, set aside or correct sentence under 28 U.S.C. §
2255. Mot. Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Fed.
Custody (ECF No. 224) (First § 2255 Mot.). On April
16, 2013, the Magistrate Judge issued a recommended decision,
recommending that the Court dismiss the petition.
Recommended Decision at 29-30 (ECF No. 288)
(First Recommended Decision). Mr. Poulin objected to
the recommended decision on May 18, 2013. Obj. to the
Magistrate’s Recommended Decision (ECF No. 291).
On January 15, 2014, this Court affirmed the recommended
decision. Order on Mot. Under 28 U.S.C. § 2255
at 17 (ECF No. 293); Am. Order on Mot. Under 28
U.S.C. § 2255 (ECF No. 295) (First § 2255 Order).
On February 18, 2014, Mr. Poulin moved for reconsideration.
Pet’r’s Mot. for Recons. (ECF No. 296)
(First Mot. for Recons.). On April 24, 2014, this
Court denied Mr. Poulin’s motion for reconsideration.
Order on Mot. for Recons. (ECF No. 310) (Order
on Mot. for Recons.).
1, 2015, Mr. Poulin filed a motion for relief pursuant to
Rule 60(b). Mot. Pursuant to Civil Rule 60(b) (ECF
No. 314) (Second Mot. for Recons.). On October 19,
2015, the Magistrate Judge issued a recommended decision,
recommending that the Court dismiss Mr. Poulin’s
petition as a second or successive motion under 18 U.S.C.
§ 2255. Recommended Decision on Rule 60(b) Mot.
(ECF No. 332) (Second Recommended Decision). On
November 6, 2015, Mr. Poulin objected to the recommended
decision. Obj. to Recommended Decision (ECF No.
333). On January 29, 2016, the Court affirmed the magistrate
judge’s recommended decision. Order Affirming the
Recommended Decision of the Magistrate Judge (ECF No.
336) (Second § 2255 Order).
February 29, 2016, Mr. Poulin filed a motion for
reconsideration of the order affirming the magistrate
judge’s recommended decision. Rule 60(b) Mot. for
Recons. (ECF No. 337) (Pet’r’s Mot. for
Recons.).,  The Government responded to Mr.
Poulin’s motion for reconsideration on March 31, 2016.
Gov’t’s Resp. to Pet’r’s Rule
59(e) and Rule 60(b) Mots. for Recons. (ECF No. 342)
(Gov’t’s Resp.). Mr. Poulin replied on
April 19, 2016. Reply to Gov’t’s Resp. to
Rule 59(e) Mot. to Recons. (ECF No. 344)
The Second Recommended Decision
issue is the Court’s affirmance of the Magistrate
Judge’s second recommended decision. In the October 19,
2015 recommended decision, the Magistrate Judge observed that
in the initial § 2255 petition, Mr. Poulin raised two
claims for ineffective assistance of counsel. Second
Recommended Decision at 2 (citing First Recommended
Decision at 2). The Magistrate Judge described the
earlier § 2255 petition as claiming that his trial
counsel “failed effectively to pursue charges of
prosecutorial misconduct, including alleged Brady
and Giglio violations,  the alleged manufacture of
evidence, and alleged fraud on the court.” Id.
(citing First Recommended Decision at 2). In
addition, the Magistrate Judge wrote that Mr. Poulin asserted
“that his counsel failed properly to object to and
appeal from ‘the cumulative effect of multiple alleged
errors related to ground one.’” Id.
(quoting First Recommended Decision at 2).
Magistrate Judge reviewed the standards for determining
whether a post-conviction petition-filed after a final
judgment on a § 2255 petition-that the petitioner has
denominated as a motion under Rule 60(b) is in fact a Rule
60(b) motion or a successive § 2255 petition.
Id. at 5-7. If the new filing is a second or
successive § 2255 motion, Mr. Poulin would be required
to obtain certification from the appropriate court of appeals
before a district court may consider it. Id. at 5
(citing 28 U.S.C. § 2244(b)(3)(A); 28 U.S.C. §
2255(h); First Circuit Loc. R. 22.1; Trenkler v. United
States, 536 F.3d 85, 96 (1st Cir. 2008) (quoting
Pratt v. United States, 129 F.3d 54, 57 (1st Cir.
1997)). The Magistrate Judge observed that in Gonzalez v.
Crosby, 545 U.S. 524, 530-32 (2005), the United States
Supreme Court “distinguished between (1) a motion that
is filed as a Rule 60(b) motion but that is, in substance, a
second or successive habeas motion subject to gatekeeping
requirements; and (2) a motion that is properly brought as a
Rule 60(b) motion.” Id.
Magistrate Judge reviewed Mr. Poulin’s motion and
concluded that “all of Petitioner’s claims can be
fairly characterized as claims that must be presented, if at
all, in a second or successive section 2255 motion.”
Id. at 8. The Magistrate Judge concluded that Mr.
Poulin could not go forward with his Rule 60(b) motion
because it was in fact a second or successive § 2255
motion and he had not obtained circuit court permission to
file the motion. Id.
Daniel Poulin’s Motion for Reconsideration
motion for reconsideration, Mr. Poulin asserts that before
dismissing his petition, the law requires the Court to find
“beyond a reasonable doubt that [Poulin] can prove no
set of facts in support of his claim which would entitled him
to relief.” Pet’t’s Mot. for
Recons. at 1 (alteration in original) (quoting
Estelle v. Gamble, 429 U.S. 97, 106
(1976)). Mr. Poulin quotes the Magistrate
Judge’s characterization of the errors he alleges
occurred in the § 2255 petition: (1) that the Court
relied on a case that was distinguishable, (2) that the Court
failed to address a non-defaulted claim of ineffective
assistance of appellate counsel, (3) that the Court
erroneously decided its April 24, 2014 order on Mr.
Poulin’s motion for reconsideration when critical
documents were missing from the record, (4) that the Court
mischaracterized Mr. Poulin’s claims and misstated the
record, (5) that the Court erroneously discounted sworn
statements that entitled Mr. Poulin to an evidentiary
hearing, (6) that the Court failed to address the
prosecution’s malfeasance regarding known perjured
testimony, and (7) that the Court failed to address an
inaccurate statement by the prosecutor to the Court about the
discovery, correction, and origin disclosure of the
Government’s falsified device connection. Id.
(citing Second Recommended Decision at 3). Mr.
Poulin insists these issues-even as framed by the Magistrate
Judge-are procedural, and not substantive, because his motion
“addresses only the procurement of the
judgment in the habeas proceeding.” Id. at 4
(emphasis in original).
The Government’s Response
the standards of either Rule 59(e) or 60(b), the Government
contends that Mr. Poulin’s motion is without merit.
Gov’t’s Resp. at 1-4. The Government
reviews this case’s knotty procedural history,
culminating in the Magistrate Judge’s second
recommended decision, and argues that “[n]othing about
the Rule 60(b) Magistrate Judge’s careful analysis or
this Court’s acceptance of that analysis amounts to a
misapprehension of any facts or controlling law.”
It. at 5-6 (citing Platten v. HG Bermuda
Exempted Ltd., 437 F.3d 118, 139 (1st Cir. 2006)).
Turning to Mr. Poulin’s present filings, the Government
notes that he “challenges the denial of his original
Rule 60(b) motion on the same seven bases he raised in the
first Rule 60(b) motion.” Id. at 7. Thus,
according to the Government, “the instant pleadings,
like the Rule 60(b) motion they attempt to have revisited,
are themselves unauthorized successive §2255 petitions
that the Court lacks jurisdiction to consider.”
Id. (citing Trenkler, 536 F.3d at 97).
Mr. Poulin’s Reply
Poulin disagrees with the Government as to whether his claims
are procedural or substantive, asserting that they
“are in substance procedural claims, and
are not claims that can be characterized as an
attack on the merits of the criminal judgment.”
Pet’r’s Reply at 2-3 (emphasis in
original). As Mr. Poulin sees it, both the Government and the
Magistrate Judge “merely alleged that [his motion is] a
Second or Successive without any evidentiary or
legal foundational support.” Id. at 3
(emphasis in original). After setting out the law as he
understands it, id. at 3-5, Mr. Poulin ...