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Carter v. United States

United States District Court, D. Maine

November 10, 2016



          John C. Nivison, U.S. Magistrate Judge

          In this action, Petitioner Robert Kelly Carter moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 57.) Following a guilty plea, Petitioner was convicted of possession of firearms by a convicted felon; the Court sentenced Petitioner to 120 months in prison, followed by three years of supervised release. (Judgment, ECF No. 42 at 1-3; Indictment, ECF No. 14.) Petitioner did not appeal from the judgment.

         Petitioner asserts ineffective assistance of counsel based on the following grounds: (1) failure to move to suppress evidence from a search that petitioner contends was unconstitutional (Motion at 8); (2) failure to file a notice of appeal and failure to pursue an appeal (id. at 4); (3) failure to investigate adequately a prior conviction that formed the basis for a sentencing enhancement (id. at 5); (4) failure to investigate adequately bases for mitigation at sentencing (id. at 6); and (5) failure to challenge adequately the requirement that Petitioner participate in sex offender treatment as a special condition of supervised release (id. at 8).

         The Government filed a response, and requested dismissal. (Response, ECF No. 71 at 1.) Petitioner retained counsel, who filed Petitioner's reply. (Reply, ECF No. 79 at 33.)

         Following a review of Petitioner's motion and the Government's request for dismissal, I recommend pursuant to Rule 7 of the Rules Governing Section 2255 Proceedings, the Court allow Petitioner twenty days to submit admissible evidence that Petitioner believes corroborates his communications with his counsel regarding the notice of appeal. I also recommend that if Petitioner files any such evidence, the Court permit the Government to file a response to Petitioner's submission within 20 days of the filing. I further recommend the Court deny Petitioner's motion as to the remaining claims.

         I. Factual Background and Procedural History

          In 2012, Petitioner's probation under a Kentucky sentence was transferred from Kentucky to Maine. (Motion at 19; Kentucky state court petition, ECF No. 57-8 at 3, 13.) Petitioner, therefore, was on probation at the time of the events that gave rise to the federal criminal prosecution.

         According to the prosecution version, which Petitioner, in his plea colloquy, told the Court he did not dispute, one of Petitioner's female friends contacted Petitioner's probation officer on September 18, 2013, and told him that Petitioner possessed at least two handguns at his residence in Lisbon, Maine, where Petitioner lived alone. (Prosecution Version, ECF No. 24 at 1; Plea Tr., ECF No. 54 at 13-14.) Later that day, law enforcement and the probation officer conducted a search of Petitioner's residence, pursuant to Petitioner's probation conditions. (Prosecution Version at 1.) After the officers told Petitioner they intended to conduct a search based on the friend's report, Petitioner told the officers where they would find the guns; officers found the guns in the place identified by both Petitioner and the friend. (Id. at 1-2.)

         Petitioner was indicted in November 2013 for a violation of 18 U.S.C. § 922(g)(1), for knowingly possessing two firearms after having been convicted of the following three crimes: (1) residential entry in Indiana (2001 conviction); (2) sexual battery in Indiana (2004 conviction); and (3) sexual abuse in the first degree in Kentucky (2007 conviction). (Indictment at 1.) The indictment alleged that Petitioner was subject to the penalty provisions of 18 U.S.C. § 924(e). (Id.)

         In December 2013, following a hearing conducted pursuant to Fed. R. Crim. P. 11, the Court accepted Petitioner's guilty plea. (Hearing Tr., ECF No. 54 at 17.) At sentencing, the Court concluded that Petitioner was not subject to the fifteen-year minimum sentence under section 924(e), because the residential entry conviction did not qualify as a predicate violent felony. (Sentencing Tr., ECF No. 55 at 15-16.)

         The Court determined the sentencing guidelines range as follows: The base offense level was 24, from which the Court subtracted three points for Petitioner's acceptance of responsibility, for a total offense level of 21. (Id. at 20, 23.) The Court found that Petitioner had a criminal history category of five (category V), and thus determined the guidelines range to be from 70 to 87 months. (Id. at 23.)

         The Court departed upward from the guidelines range, and imposed a sentence of 120 months, relying on a number of the sentencing factors set forth in 18 U.S.C. § 3553, most particularly the need to protect the public. (Sentencing Tr., ECF No. 56 at 9-15.) Among other things, the Court considered testimony of the woman who informed law enforcement that Petitioner had a gun; the Court also considered Petitioner's criminal history, including the convictions for residential entry, sexual battery, and sexual abuse in the first degree. (Id. at 11-14).

         The Court imposed a prison term of 120 months, followed by supervised release of three years. (Id. at 15-16; Judgment at 2-3.) In addition, the Court imposed, as a special condition of supervised release, the requirement that Petitioner participate in sex offender treatment. (Sentencing Tr., ECF No. 56 at 19; Judgment at 4.)

         At the conclusion of the sentencing hearing, the Court informed Petitioner that he had the right to appeal: “I want to inform you that you have the right to appeal. To effectively exercise your right of appeal, you have to be caused to be filed with the clerk of this court within 14 days of today and not after that a written notice of appeal.” (Sentencing Tr., ECF No. 56 at 21.)

         Petitioner asserts that he placed his section 2255 motion in the prison mailing system on May 13, 2015. (Motion at 35.) The motion was filed timely on May 18, 2015.[1] (Id. at 1.)

         II. 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).

         A section 2255 petitioner must 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). 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) (per curiam).

         In a claim of ineffective assistance of counsel for failure to file a notice of appeal, however, a petitioner need not allege prejudice. See Rodriguez v. United States, 395 U.S. 327, 330 (1969) (holding that “the courts below erred in rejecting petitioner's application for [section 2255] relief because of his failure to specify the points he would raise were his right to appeal reinstated”); Bonneau v. United States, 961 F.2d 17, 23 (1st Cir. 1992) (same).

         “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)). 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

         1. Failure to move to suppress (Ground Four)

         Petitioner alleges that counsel was ineffective for the failure to move to suppress evidence from a warrantless search that Petitioner contends was unconstitutional. (Motion at 8.) Petitioner maintains the search, which was conducted pursuant to the probation conditions imposed as part of his Kentucky sentence, was illegal because the five-year period of probation exceeded the three-year maximum probation term permitted under Kentucky law, and the search occurred more than three years into his probation.[2] (Motion at 28-32.) Petitioner alleges that he told the probation officer before the search that the maximum allowable three-year probation period had expired. (Id. at 30.)

         Petitioner does not allege that he had successfully challenged the Kentucky judgment prior to the search; rather, he alleges that in May 2015, i.e., more than 19 months after the search, he filed a state court post-conviction petition to challenge the length of probation in his Kentucky sentence, and he asserts the state court post-conviction proceeding was pending at the time he filed his section 2255 motion. (Id. at 32; Kentucky petition, ECF No. 57-8.) In other words, Petitioner does not dispute (1) that the Kentucky judgment and sentence were in place at the time of the search, and (2) that the search occurred within the five-year probation period imposed as part of the Kentucky sentence.

         Petitioner's claim is foreclosed by the Supreme Court's decision in Lewis v. United States, 445 U.S. 55, 67 (1980). In Lewis, the appellant challenged his conviction, under a statute that preceded section 922(g)(1), based on his contention that the predicate state court conviction was obtained when the appellant was without counsel.[3] Lewis, 445 U.S. at 57-58. For purposes of its analysis, the Supreme Court assumed the appellant could prove he was without counsel in the prior state court prosecution. Id. at 58. “[I]t is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm. We simply hold today that the firearms prosecution does not open the predicate conviction to a new form of collateral attack.” Id. at 67-68 (citing Walker v. City of Birmingham, 388 U.S. 307 (1967)). In Lewis, the Court recognized that there was “little significant difference” between the statute at issue in that case and section 922(g)(1). Id. at 64.

         In United States v. Snyder, 235 F.3d 42 (1st Cir. 2000), the First Circuit held, based on Lewis, that a successful collateral attack on a predicate conviction for a section 922(g)(1) offense did not warrant a new trial on the section 922(g)(1) offense. 235 F.3d at 51-53 (citing Lewis, 445 U.S. at 60-61, 64, 65); see also United States v. Roberson, 752 F.3d 517, 524 (1st Cir. 2014) (noting that in Snyder, the Court “held that the later vacating of a state court conviction did not invalidate the defendant's federal conviction as a felon in possession of a firearm under [section 922(g)(1)] because he was a felon at the time of the charged possession”).

         Petitioner's challenge to the search is premised on his contention that in a prosecution under section 922(g)(1), he can collaterally challenge the state court conviction. Lewis does not permit such a defense; rather, the Court held that a challenge must have been filed and concluded successfully, or the disability otherwise must have been removed, before a defendant obtains possession of firearms. Lewis, 445 U.S. at 64, 67-68. Because Petitioner would have been precluded from challenging the Kentucky judgment in his section 922(g)(1) prosecution, the Court need not address Petitioner's underlying argument that his Kentucky probation was invalid at the time of the search. See id.; Snyder, 235 F.3d at 52-53. Given that Petitioner is not entitled to challenge his felon-in-possession prosecution on the grounds that the predicate judgment was flawed, Petitioner's related claim of ineffective assistance for failure to file a motion to suppress also fails. See Tse, 290 F.3d at 465.[4]

         2. Failure to ...

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