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Ellis v. United States

United States District Court, D. Maine

November 14, 2016

RAYMOND L. ELLIS, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE

         In this action, Petitioner Raymond L. Ellis, Jr., moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 59.) Following a guilty plea, Petitioner was convicted of theft of firearms from a federal firearms licensee, conspiracy to commit theft, and possession of firearms as a convicted felon. (Judgment, ECF No. 29 at 1.) The Court sentenced Petitioner to 120 months in prison. (Id. at 2.) In 2011, the First Circuit upheld the sentence on appeal. United States v. Ellis, No. 10-1052 (1st Cir. Mar. 17, 2011).

         Petitioner alleges that he signed his section 2255 motion in December 2015, and it was filed in January 2015. (Motion at 1, 13.) Petitioner argues that the Court erred as a matter of law when it enhanced his sentence pursuant to U.S.S.G. § 2K2.1(b)(6); he contends that the applicable guidelines range was 92 to 115 months rather than the 135 to 168 months found by the Court at sentencing.[1] (Motion at 4; Attachment, ECF No. 59-1 at 1-3.) Petitioner also asserts a related claim of ineffective assistance of counsel. (Motion at 5; Attachment at 4-5.) Petitioner requests resentencing. (Motion at 13; Attachment at 7.)

         The Court ordered the Government to respond, and to limit the response to the statute of limitations issue. (Order, ECF No. 62.) The Government requests that the motion be dismissed as untimely. (Response, ECF No. 69.) Following a review of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         At a hearing in July 2009, Petitioner waived indictment and pled guilty to a three-count information in which the Government alleged that: (1) on or about February 8, 2009, in violation of 18 U.S.C. § 922(u), Petitioner stole twelve firearms, which previously had been shipped and transported in interstate commerce, from a licensed firearms dealer in Benton, Maine (Count 1); (2) from February 8, 2009, to February 10, 2009, in violation of 18 U.S.C. § 371, Petitioner conspired with others to steal the firearms (Count 2); and (3) on or about February 8, 2009, in violation of 18 U.S.C. § 922(g)(1), Petitioner, having been convicted previously of burglarizing a dwelling, knowingly possessed the twelve firearms (Count 3). (Waiver of Indictment, Arraignment, and Plea Tr., ECF No. 17 at 4-10, 26-27.) During the plea colloquy, Petitioner told the Court that he believed that the information contained in the prosecution version of the offense was true. (Id. at 17.)

         The prosecution version states that Petitioner committed the robbery with another person. (Prosecution Version, ECF No. 8 at 1-3.) Petitioner was armed with a baseball bat, and his partner had a metal pipe or rod. (Id. at 1-2.) They donned disguises, and after they entered the store, Petitioner brandished the baseball bat, and he and his partner twice ordered the store employees to the ground. (Id. at 2.) When the employees were on the ground, Petitioner used the baseball bat to break the glass of a display case, and he removed the firearms and a silencer. (Id. at 2-3.) Petitioner's partner took approximately $2, 000 in cash, and they left. (Id. at 3.) Petitioner and his partner divided the proceeds from the robbery; Petitioner's partner received two of the firearms and approximately $500, and Petitioner kept the remaining firearms, the silencer, and approximately $1, 500. (Id.) The next day, Petitioner, his girlfriend, and another person travelled to New Hampshire; Petitioner kept one of the firearms and the silencer, and he “gave the remaining firearms to his girlfriend and her cousin for the purpose of selling the firearms for money and/or trading the firearms for cocaine.” (Id. at 3-4.)

         Following the plea colloquy, the Court made the requisite findings and accepted Petitioner's guilty plea. (Waiver of Indictment, Arraignment, and Plea Tr. at 27.) At Petitioner's sentencing hearing in December 2009, the Court told Petitioner that the Court intended to rely on the contents of the revised presentence investigation report. (Sentencing Tr., ECF No. 52 at 4.) The Court asked Petitioner whether he had reviewed the report, whether he understood it, and whether he had found anything incorrect or inaccurate in the report. (Id.) Petitioner replied that he had reviewed the report, he understood it, and he did not know of anything incorrect or inaccurate in the report. (Id.)

         The Court determined, consistent with the revised presentence investigation report, that the base offense level was 26. (Id. at 5.) The Court applied two four-level increases, one pursuant to U.S.S.G. § 2K2.1(b)(1)(B), because the offense involved more than eight firearms; the other pursuant to U.S.S.G. § 2K2.1(b)(4)(B), because the serial numbers on two of the firearms had been obliterated. (Id.) Given that the cumulative offense level may not exceed 29, the offense level was reduced to 29, pursuant to U.S.S.G. 2K2.1(b). (Id.) The Court then applied an additional four-level increase, pursuant to U.S.S.G. § 2K2.1(b)(6), because Petitioner possessed a firearm or ammunition (the Count 3 offense) in connection with another felony offense (the Count 1 offense). (Id.)

         From an adjusted offense level of 33, the Court applied a three-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. (Id. at 6.) The Court determined the applicable sentencing guideline range to be from 135 to 168 months, based on a total offense level of 30 and a criminal history category of IV. (Id.) All of the Court's sentencing guideline calculations were consistent with the revised presentence investigation report.

         The Court then considered the sentencing factors set forth in 18 U.S.C. § 3553(a), in particular Petitioner's history and characteristics, and the nature and circumstances of the offense. (Id. at 60.) The Court sentenced Petitioner to a below-guidelines prison term of 120 months on each of Counts 1 and 3, and to 60 months on Count 2, with all counts to be served concurrently with one another.[2] (Sentencing Tr. at 6; Judgment at 2.)

         Petitioner appealed from the sentence. On March 17, 2011, the First Circuit concluded that this Court did not err when it considered the Government's exhibits at the sentencing hearing, and the First Circuit affirmed the judgment. Ellis, No. 10-1052. Petitioner did not challenge on direct appeal the section 2K2.1(b)(6) enhancement. Id. (Appellant's Brief at 6.)

         Petitioner asserts that he placed his section 2255 motion in the prison mailing system on December 29, 2015. (Motion at 13.) The motion was filed on January 4, 2016. (Id. at 1.)

         The Government filed a response in June 2016 in accordance with an extension of time granted by the Court; Petitioner timely filed a reply in July 2016.[3] (Order, ...


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