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Poulin v. United States

United States District Court, D. Maine

July 19, 2016

DANIEL POULIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ON MOTION FOR RECONSIDERATION OF ORDER ON MOTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(B)

          JOHN A. WOODCOCK, JR. DISTRICT JUDGE

         Faced 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.

         I. BACKGROUND

         A. Procedural History

         On 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).

         On 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.).

         On May 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).

         On 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.).[1], [2] 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) (Pet’r’s Reply).

         II. PROCEDURAL POSTURE

         A. The Second Recommended Decision

         At 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, [3] 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).

         The 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.

         The 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.

         B. Daniel Poulin’s Motion for Reconsideration

         In his 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)).[4] 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).

         C. The Government’s Response

         Under 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).

         D. Mr. Poulin’s Reply

         Mr. 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 ...


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