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Murdock v. United States

United States District Court, D. Maine

August 22, 2016

ERIC MURDOCK, Petitioner,


          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Eric Murdock moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 135.) Following a jury trial, Petitioner was convicted of being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1), and the Court sentenced him, pursuant to 18 U.S.C. § 924(e), to a prison term of 216 months, followed by a term of three years of supervised release. (Judgment, ECF No. 110 at 2-3.) The First Circuit affirmed the conviction and sentence. United States v. Murdock, 699 F.3d 665, 667 (1st Cir. 2012).

         The Court previously denied Petitioner’s section 2255 request for relief under Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015).[1] (Decision and Order, ECF No. 192.) This recommended decision addresses Petitioner’s remaining section 2255 claims.

         Following a review of Petitioner’s motion and the Government’s request for dismissal on the merits (Response, ECF No. 169), I recommend that the Court grant the Government’s request, and dismiss Petitioner’s motion.

         I. Discussion

         A. Legal Standards

         A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         The burden is on the section 2255 petitioner to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When “a petition for federal habeas relief is presented to the judge who presided at the petitioner’s trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing.” United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

         A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “Accordingly, a defendant’s failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence.” Berthoff, 308 F.3d at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010). The First Circuit has recognized that “federal courts have the authority to consider procedural default sua sponte.Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st Cir. 2013) (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)); see also Daniels v. United States, 532 U.S. 374, 382-83 (2001) (recognizing that “procedural default rules developed in the habeas corpus context apply in § 2255 cases”) (citing Frady, 456 U.S. at 167-68).

         An allegation of ineffective assistance of counsel can excuse a procedural default, but only if the petitioner demonstrates both that counsel’s representation fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced the petitioner’s defense. Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)); Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007). Counsel’s strategic decisions are afforded deference. Strickland, 466 U.S. at 681, 689-92 (noting that counsel’s “strategic choices about which lines of defense to pursue are owed deference commensurate with the reasonableness of the professional judgments on which they are based, ” “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, ” and a petitioner must have suffered prejudice).

         A district court reviewing a claim of ineffective assistance of counsel need not address both prongs of the test because a failure to meet either prong will undermine the claim. Strickland, 466 U.S. at 697. If a petitioner’s “claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail.” Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002); United States v. Hart, 933 F.2d 80, 83 (1st Cir. 1991) (“Counsel is not required to waste the court’s time with futile or frivolous motions.”) (quotation marks omitted).

         “Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing ‘is not necessary when a [§] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.’” Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (quotation marks omitted)). In determining whether an evidentiary hearing is required, the court must “take as true the sworn allegations of fact set forth in the petition ‘unless those allegations are merely conclusory, contradicted by the record, or inherently incredible.’” Owens, 483 F.3d at 57 (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002)). Summary dismissal of a motion is permitted when the allegations are “‘vague, conclusory, or palpably incredible, ’” even “‘if the record does not conclusively and expressly belie [the] claim.’” David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). “Allegations that are so evanescent or bereft of detail that they cannot reasonably be investigated (and, thus, corroborated or disproved) do not warrant an evidentiary hearing.” Id. The Court can reasonably require a petitioner to supply the Court with salient details of the claim prior to permitting discovery or a hearing. Id. (holding that “the district court did not abuse its discretion in refusing to license a fishing expedition”).

         B. Claims and Analysis[2]

         1. Claims regarding the jury instructions (Grounds One, Eight, and Nine)

         Grounds One, Eight, and Nine are based on Petitioner’s argument that he is not guilty because the firearms he possessed were antiques and therefore not illegal under 18 U.S.C. §§ 921, 922(g)(1).[3] In Ground One, Petitioner alleges that the Court erred when it failed to give an instruction that the term “firearm” excluded antique firearms. (Motion at 5.) Petitioner includes in Ground One a claim of ineffective assistance of appellate counsel. (Id.) Petitioner alleges in Ground Eight ineffective assistance of trial and appellate counsel regarding the issue of whether the guns were antiques. (Id. at 24-25.) In Ground Nine, Petitioner asserts evidence supported an instruction regarding antique guns. (Id. at 26.) Petitioner argues that he should have been acquitted because the Government did not prove the guns were not antiques.[4] (Id.)

         At trial, law enforcement officers identified the guns at issue as a Smith & Wesson .22 caliber revolver and a Taurus .38 caliber revolver. (Trial Tr. I, ECF No. 122 at 176-77.) At the conclusion of the evidence, counsel moved for acquittal, citing in part the Government’s failure to prove the firearms were not antiques. (Trial Tr. II, ECF No. 123 at 7-8.) The Court denied the motion because the antique status of the guns was an affirmative defense that the defense failed to raise. (Id. at 9-10.) A prosecution witness had testified that Petitioner showed him the two guns at issue, and that Petitioner let the witness hold the guns after they arrived in a package sent to the witness’s step-grandmother. (Trial Tr. I at 141-43.) The witness testified that one of the guns he saw was “more antiquey” than the one in the courtroom, and he remembered that the other gun was “shinier.”[5] (Trial Tr. I at 146.) Counsel argued in closing:

Now, [the witness] told you yesterday that while he was there . . . Mr. Murdock showed him a couple of guns. . . . One he said looked similar but the one he saw was more antiquey, and the other one he said I don’t remember - - I don’t - - I remember it being shinier. So ask yourself if those are the real guns that were recovered by the police.

(Trial Tr. II at 40.)

         Contrary to Petitioner’s argument, the evidence did not support the affirmative defense. The testimony that one of the guns looked “more antiquey” and the other one was “shinier” than those shown to the witness at trial would not support a finding that the guns qualified as antiques. Instead, the witness described the appearance or luster of the surface of the gun, and did not attest to the date of manufacture or any of the structural or functional ways in which an antique firearm, or a replica of an antique firearm, is defined under 18 U.S.C. § 921(a)(16).

When the antique firearm exception is raised as an affirmative defense, the defendant bears the burden to produce evidence sufficient to raise a genuine dispute about whether the firearm is an antique. Only then does the government need to prove beyond a reasonable doubt that the firearm is not an antique firearm.

United States v. Pate, 518 F.3d 972, 976 (8th Cir. 2008) (quotation marks omitted); United States v. Basnett, 735 F.3d 1255 (10th Cir. 2013) (“Every circuit court of appeals to consider the issue has treated the antique exception as [an] affirmative defense.”). In this case, the record lacks any evidence that would support the affirmative defense.

         In addition, because the issue was not raised on appeal, the claim is procedurally defaulted. Given the lack of merit of the defense, Petitioner has failed to demonstrate ineffective assistance of counsel. In short, although counsel did not persuade the Court to acquit, and counsel did not persuade the jury that the guns at trial were not the ones illegally possessed by Petitioner, counsel’s performance was not deficient. See Strickland, 466 U.S. at 689. Appellate counsel was not required to include a non-meritorious argument on appeal. See Hart, 933 F.2d at 83. The ineffective assistance claim lacks merit.

         2. Claim regarding lack of notice in the indictment of the Government’s plan to seek an enhanced sentence (Ground Two)

         Petitioner argues that his enhanced sentence, imposed pursuant to 18 U.S.C. § 924(e)(1), was illegal because the indictment did not cite section 924(e).[6] (Motion at 6.) Petitioner notes that the indictment cited section 924(a)(2), which restricts the term of imprisonment to a maximum of ten years.[7]

         At sentencing, counsel argued that the Government failed to provide adequate notice that it would seek an enhanced penalty. (Sentencing Tr. I, ECF No. 117 at 9-10, 16.) The Government maintained that it provided notice through an amended synopsis filed several months before the trial. (Id. at 16; Amended Synopsis, ECF No. 18 at 1.) Petitioner contends in his section 2255 motion that notice provided in an amended synopsis deprived him of the constitutional protections he would have received had the notice been included in the indictment. (Motion at 6.)

         Petitioner’s claim lacks merit. In United States v. Craveiro, 907 F.2d 260 (1st Cir. 1990), the First Circuit rejected arguments essentially identical to those of Petitioner, except that Petitioner received pre-trial notice, whereas in Craveiro, the defendant did not receive notice until after trial. In Craveiro, the defendant argued on appeal that the Government’s failure to include in the indictment its intention to seek an enhanced penalty was both contrary to statutory intent and unconstitutional. 907 F.2d at 262. The First Circuit noted that it “would normally expect the government to give a defendant pre-trial notice of possible sentence enhancement, ” but it held that “there is no statutory requirement that it do so.” Id. at 264.

         The First Circuit also rejected the defendant’s due process and equal protection arguments regarding lack of notice of the sentencing enhancement. Id. at 264-65. “[P]rocedural due process does not require pre-trial notice of the possibility of enhanced sentencing for recidivism. It requires only reasonable notice of and an opportunity to be heard concerning the prior convictions.” Id. at 264. The Court held that the defendant’s due process claim lacked merit because the Government provided adequate notice before sentencing, and the defendant had the opportunity to contest his prior convictions. Id. The Court determined that the defendant’s equal protection claim failed because the defendant did not “show that his selection was ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’” Id. at 264-65 (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). The First Circuit also concluded that the lack of a statutory requirement of pre-trial notification did not violate equal protection. Id. at 265.

         Petitioner, like the defendant in Craveiro, has failed to demonstrate a denial of due process or equal protection. See Id. Because Petitioner’s statutory and constitutional notice-related arguments fail on the merits, any related ineffective assistance claim also fails. See Tse, 290 F.3d at 465.

         3. Claim that the Government committed prosecutorial misconduct when it withheld exculpatory evidence, and that counsel was ineffective for the failure to move to compel production of the exculpatory evidence (Grounds Three and Four)

         In Ground Three, Petitioner contends that the Government committed prosecutorial misconduct when it failed to produce an allegedly exculpatory letter, and that trial and appellate counsel were deficient for the failure to move to compel the Government to produce the letter. (Motion at 9-10.) Petitioner alleges in Ground Four that the Government also failed to preserve and produce fingerprints from the trunk of the vehicle that contained the firearms.[8] (Motion at 11-14.) Petitioner contends that although trial counsel raised the issue, appellate counsel did not. (Id. at 15.)

         Regarding Ground Three, the section 2255 motion did not identify the letter that was the subject of this claim, but Petitioner’s reply confirms that the letter was the one discussed in the Government’s response, i.e., a letter from Petitioner’s wife to a police chief. (Motion at 9; Response at 9; Reply, ECF No. 208 at 7.) At trial, the police chief testified that he received a one-page hand-written note from Petitioner’s wife, but that he was unable to find the note, and did not remember anything about the note. (Trial Tr. I at 231.) In closing argument, counsel argued that the Government’s failure to produce the note gave rise to reasonable doubt that the guns belonged to Petitioner.[9] (Trial Tr. II at 43.)

         Petitioner’s prosecutorial misconduct claim regarding Ground Three is procedurally defaulted because he did not raise this argument at trial or on appeal. See Owens, 483 F.3d at 56. Therefore, the Court may consider the claim only if Petitioner can demonstrate deficient performance by counsel and prejudice. See id.

         Counsel may have made a strategic decision not to file a motion to compel production of Petitioner’s wife’s note; Petitioner has not demonstrated otherwise, and counsel’s decisions are afforded deference. See Strickland, 466 U.S. at 681, 689-90. Given counsel’s use of the absence of the note in closing argument, Petitioner has failed to demonstrate either deficient performance based on the decision not to move to compel production of the note, or prejudice to Petitioner.[10]See Id. at 689-92.

         Ground Four is procedurally defaulted, because the issue of the Government’s failure to preserve and produce fingerprint evidence was not raised on appeal. See Owens, 483 F.3d at 56. During the trial, a police officer testified that the vehicle, in which the guns and ammunition were found in the trunk, was covered with “heavy dust, ” and that there were fingerprints in the dust. (Trial Tr. I at 174-77.) The Government represents that it did not arrange for an analysis of any fingerprints found on the car.[11] (Response at 9-10.) In closing argument, counsel used the lack of fingerprint evidence to argue that the Government had failed to prove its case beyond a reasonable doubt:

What about the MG or the Triumph, the car that was covered with dust, [an officer] said heavy dust, fingerprints in the dust. [Another officer] said partial prints, smudge prints on the trunk. Ask yourself, is that reasonable doubt? Ask yourself, whose prints or whose DNA might have been there.

(Trial Tr. II at 42-43.) Trial counsel’s decision simply to use the lack of evidence to show that the Government had not proven its case is entitled to deference. See Strickland, 466 U.S. at 681, 689-90. Petitioner thus has failed to demonstrate that counsel’s decision was deficient or that Petitioner was prejudiced. See 689-92.

         4. Claim that the Court erred by not instructing that the effect on commerce must be substantial (Ground Five)

         In Ground Five, Petitioner alleges that the Court failed properly to instruct the jury on the definition of “commerce” and the requirement that commerce be “substantial, ” and counsel provided ineffective assistance on this issue. (Motion at 17-18.) Petitioner waives this argument in his reply. (Reply at 9.) Therefore, the Court need not further consider the claim.

         Even if Petitioner had not waived the claim, however, Petitioner would not have succeeded. The claim is procedurally defaulted, and there is no basis for a claim of ineffective assistance of counsel. The Court instructed the jury that one of the elements it must find was

that the firearms were connected with interstate commerce. This means that the firearms at any time after they were manufactured moved from one state to another. The travel need not have been connected to the charge in the indictment, need not have been in furtherance of any unlawful activity, and need not have occurred while Eric Murdock possessed the firearms. The Government does not have to prove that Eric Murdock knew that his conduct was illegal. The word "knowingly" means that the act was done voluntarily and intentionally, not because of mistake or accident.

(Trial Tr. II at 18-19.) The instruction was not in error. See United States v. Combs, 555 F.3d 60, 65, 66 (1st Cir. 2009). In Combs, the First Circuit applied “a ‘minimal nexus’ standard, requiring proof only of interstate travel of a firearm or ammunition.” Id. at 65 (quoting Scarborough v. United States, 431 U.S. 563, 575 (1977)). The Court held that “there was sufficient evidence for a jury to conclude that either the firearm or the ammunition were ‘in or affecting commerce’ as required by 18 U.S.C. § 922(g).” Id. at 66. Because Petitioner’s underlying claim lacked merit, the claim of ineffective assistance of counsel would have failed had Petitioner not waived it. See Tse, 290 F.3d at 465.

         5. Claim that the Court erroneously found at sentencing that Petitioner committed the offense as part of a pattern of criminal conduct engaged in as a livelihood (Ground Six)

         In Ground Six, Petitioner alleges that he did not commit the offense as part of a pattern of criminal conduct engaged in as a livelihood. (Motion at 19; Reply at 18-19.) He contends that he was a commercial fisherman and construction company owner, and, therefore, he did not earn his livelihood as a criminal. (Id.) In his section 2255 motion, Petitioner asserts that appellate counsel was ineffective because counsel failed to raise this issue on appeal. (Id. at 20.)

         The claim is procedurally defaulted because it was not raised on appeal. See Owens, 483 F.3d at 56. Furthermore, it appears that the section of the sentencing guidelines regarding criminal livelihood, USSG § 4B1.3, played no role in the Court’s determination of the sentencing guidelines range. (Sentencing Tr. II, ECF No. 118 at 26-33.) Accordingly, Petitioner’s underlying claim is without merit, and the related ineffective assistance claim also fails. See Tse, 290 F.3d at 465.

         6. Claim that the Court and counsel failed to address witness perjury at the suppression hearing and at trial (Ground Seven)

         Through Ground Seven, Petitioner asserts that a prosecution witness committed perjury at the suppression hearing and at trial, and neither counsel nor the Court addressed the issue. (Motion at 21-22.) Petitioner cites alleged inconsistencies among the police report, the suppression testimony, and the trial testimony. (Id. at 21.) Petitioner contends the perjury concerned (1) whether the officer questioned Petitioner during the search; (2) what Petitioner said about the color of the bag in which the guns and ammunition were found during the search; and (3) whether Petitioner arrived at the searched residence in a car or a truck.[12] (Id.)

         In Petitioner’s reply, he argues that, at a minimum, inconsistencies in the officer’s testimony demonstrate bad faith by the Government. (Reply at 9-10.) He also appears to allege that had the Government produced the letter that is the subject of his claim in Ground ...

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