United States District Court, D. Maine
RAYMOND L. ELLIS, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. NIVISON, U.S. MAGISTRATE JUDGE
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).
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. (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.)
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.
Factual Background and Procedural History
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.)
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.)
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.
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.)
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.
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. (Sentencing Tr.
at 6; Judgment at 2.)
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.)
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.)
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. (Order, ...