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Doe v. United States

United States District Court, D. Maine

November 15, 2016

JOHN DOE, a/k/a Theotis Leonard, a/k/a Rashide Campbell, a/k/a Tony, 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 John Doe, a/k/a Theotis Leonard, a/k/a Rashide Campbell, a/k/a Tony, has filed a motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 139; Supp. Motion, ECF No. 159.)[1] In Petitioner's first three grounds for relief, he alleges that counsel provided ineffective assistance by failing to argue against three sentence enhancements: (1) a three-level increase in the offense level, pursuant to U.S.S.G. § 3B1.1(b), for Petitioner's management or supervisor role; (2) a two-level enhancement, pursuant to section 2D1.1(b)(1), for possession of a firearm in connection with the offense; and (3) a two-level enhancement, pursuant to section 2D1.1(b)(2), for the use of violence during the offense. (Supp. Motion, ECF No. 159 at 4-7; Attachment to Supp. Motion, ECF No. 159-1 at 3-6; Sentencing Tr., ECF No. 133 at 32-33.) In addition, in his supplemental section 2255 motion, Petitioner asserts trial counsel failed to communicate with Petitioner regarding a plea offer or, as Petitioner alleges in his reply memorandum, failed to communicate with Petitioner regarding sentencing negotiations. (Supp. Motion at 8; Attachment to Supp. Motion at 8; Reply, ECF No. 168 at 5-7.)

         The Government requests summary dismissal on the merits on the sentencing enhancement claims, and argues that Petitioner's claims based on the lack of communication regarding a pretrial offer and sentencing negotiations are both untimely and meritless. (Response, ECF No. 165 at 1-2.)

         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

         Following a jury trial on November 30, 2011, and December 1, 2011, Petitioner was convicted of the distribution of a substance that contained cocaine base, in violation of 21 U.S.C. § 841(a)(1), and subject to the penalty provisions of 21 U.S.C. § 841(b)(1)(C). (Judgment, ECF No. 125 at 1; Jury Verdict, ECF No. 67; Superseding Indictment, ECF No. 27.)

         In March 2012, i.e., after trial but before sentencing, trial counsel filed two successive motions to withdraw. (Motions to Withdraw, ECF Nos. 78, 85.) The Court held a hearing and denied the first motion on March 16, 2012. (Minute Entry, ECF No. 80; Oral Order, ECF No. 81.) On March 27, 2012, trial counsel filed a second motion to withdraw, noting that Petitioner had retained alternate counsel; the Court granted the motion. (Notice of Appearance, ECF No. 83; Motion to Withdraw, ECF No. 85; Order, ECF No. 86.)

         At sentencing on August 28, 2012, the Court found the facts as set forth in the revised presentence investigation report. (Sentencing Tr. at 32.) The Court made the following guidelines calculations: The base offense level was 32, based on a drug quantity of 280 grams of cocaine base. (Id.) The Court added two levels for Petitioner's use of violence against an associate during the offense, and it added another two levels for possession of a firearm in connection with the offense. (Id.) The Court added three levels for Petitioner's role as a manager or supervisor. (Id. at 32-33.) Finally, the Court added two levels, pursuant to U.S.S.G. § 3C1.1, for obstruction of justice. (Id. at 33.) Petitioner's total offense level was 41, and his criminal history was Category I; the calculations yielded a guidelines range of 324 to 405 months. (Id.)

         The Court considered the sentencing factors, pursuant to 18 U.S.C. § 3553(a), and focused particularly on the nature and circumstances of the offense, the seriousness of the offense, the need to promote respect for the law, and the need for general and specific deterrence. (Id. at 34.) The Court found that the size of the conspiracy, the use and possession of firearms, the use of violence, and the substantial amount of drugs, contributed to the danger caused by the offense. (Id. at 34-35.) The Court sentenced Petitioner to a prison term of 240 months, which is the maximum permitted under 21 U.S.C. § 841(b)(1)(C), and it imposed a term of three years of supervised release. (Judgment at 2-3.) United States v. Doe, 741 F.3d 217 (1st Cir. 2013).

         The First Circuit upheld the conviction and sentence on appeal. Doe, 741 F.3d at 221. The Court held there was sufficient evidence to support the sentencing enhancements for the use of violence, for the possession of a firearm, and for Petitioner's involvement as a manager or supervisor. Id. at 235-38. The Court concluded,

there is no doubt the trial judge found the government's witnesses credible and accepted their testimony in large measure. The record reveals their testimony was generally consistent not just with the other witnesses, but also with the [presentence investigation report]. Rigorous cross-examination exposed any infirmities or bias on the part of the witnesses. As we do not have the benefit of observing the witnesses and evaluating their demeanor, we are loath to disturb the district court's credibility determinations, which we certainly consider “plausible.” Therefore, we uphold the district court's imposition of enhancements for use of violence, possession of a firearm, and for being a manager/supervisor in a drug conspiracy, based as they were on credible witness testimony and reliable information in the [presentence investigation report].

Id. at 238. On October 6, 2014, the Supreme Court denied Petitioner's petition for a writ of certiorari. Doe v. United States, 135 S.Ct. 168 (2014).

         Petitioner asserts he signed his section 2255 motion and placed it in the prison mailing system on September 28, 2015; the motion was filed on October 5, 2015. (Motion at 1, 7.) The Government does not dispute that Petitioner's motion was filed timely.[2] (Response at 1-2.) Although the page asserting Ground One on the standard-form motion was missing from Petitioner's initial section 2255 filing, the additional pages filed with the motion make clear that Petitioner alleged ineffective assistance for the failure to argue against three sentencing enhancements for Petitioner's role in the offense, for possession of a gun, and for use of violence. (Motion at 11-13.) The Court granted Petitioner the opportunity to file a supplemental section 2255 motion because it appeared that pages had been omitted inadvertently from the standard form section 2255 motion; the order permitted Petitioner “to supplement his motion to include the omitted pages.” (Order, ECF No. 156 at 1.)

         Petitioner's supplemental motion, which he alleges he placed in the prison mailing system on March 7, 2016, and which was filed on March 14, 2016, and an attachment to the supplemental motion, reiterated the three grounds asserted in the original motion. (Supp. Motion at 1, 4-7, 13; Attachment to Supp. Motion at 3-6.) Petitioner also added to his supplemental motion a fourth ground, in which he alleges that counsel failed to communicate a pretrial offer from the Government and the substance of sentencing negotiations counsel conducted with the Government. (Supp. Motion at 8; Attachment to Supp. Motion at 8; Reply at 5-7.)

         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); Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994) (“[i]ssues disposed of in a prior appeal will not be reviewed again ...


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