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Fader v. United States

United States District Court, D. Maine

November 18, 2016

KIZZY FADER, 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 Kizzy Fader moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct her sentence. (Motion, ECF No. 108.) The Government has moved for summary dismissal. (Response, ECF No. 112.)

         Petitioner asserts the following four grounds for her section 2255 motion. First, she contends that her counsel failed to inform her of a plea offer in which the Government proposed a five-year prison term. (Motion at 7.) Second, she asserts counsel only met with her one time prior to trial and was not prepared for trial. (Id. at 8.) Third, she maintains she provided counsel with the names of witnesses who would have contradicted the testimony on which the Government relied to secure the conviction. (Id. at 10.) Fourth, she contends the Court erroneously refused to accept her guilty plea. (Id. at 12.)

         Following a review of the record, 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

         On January 12, 2012, the Grand Jury returned an indictment charging Petitioner in a single count with conspiring to distribute cocaine and 28 or more grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). (Indictment, ECF No. 2.) On May 1, 2012, the Court conducted jury selection in anticipation of a trial to commence on May 16, 2012. Before the start of the trial on May 16, Petitioner, her counsel, and the Government executed a plea agreement, which they presented to the Court. (ECF No. 64.) Pursuant to the agreement, the Government would recommend that Petitioner receive a sentence reduction based on acceptance of responsibility. (Id. at 2.) Petitioner agreed, inter alia, to waive her right to appeal, except with respect to a sentence exceeding five years. (Id. at 3.)

         Petitioner pled guilty at the change of plea hearing. (Transcript of Rule 11 Proceedings at 4, 11, ECF No. 97.) At the hearing, the Government informed the Court that Petitioner agreed she was guilty of the charge stated in the indictment, but that she disputed certain facts stated in the prosecution version regarding the drug quantities. (Id. at 11 - 12.) The Court informed Petitioner that the disputed provisions would be stricken from the prosecution version for purposes of her plea. (Id. at 13 - 14.) The following colloquy then ensued:

THE COURT: Now, I have a very important question for you, and, again, I require a truthful answer. Do you understand what it is the government says you did in committing this crime?
THE DEFENDANT: Your Honor, I got to be truthful. I've done a lot of things in my lifetime. I've been a lot of places. I'm taking this agreement so I can be home with my kids.
THE COURT: Sorry?
THE DEFENDANT: I'm taking this agreement so I can be home with my kids. But, truthfully, I'm only doing it because my lawyer don't have the balls to fight the state because, truthfully, they know and I know I didn't do half of what they say I've done. But whereas I know I'm not going to get a fair trial in your courthouse, at any courthouse in the state of Maine, I'm going to lay down and I'm going to take this one. But one day, I'm going to set free, and I'm going to be able to prove my innocence upon an auger (phonetic). So, yes, take it as an agreement. Okay? And I'll be back because I'm not going - I'm not going to stop fighting this fight.
THE COURT: All right. Well, I'm not going to accept your plea. We're going to go to trial. You've told me you're innocent, and that's what the trial process is for. We're going to take a break; we're going to bring the jury in; and we're going to go to trial. Court will stand in recess.

(Id. at 15 - 16.)

         In accordance with the Court's determination, the matter proceeded to trial, and concluded on May 18, 2012. The evidence at trial supported the finding that a group of individuals associated with Dawlin Cabrera conducted a drug trafficking conspiracy that transpired at, among other locations, an apartment building on Ohio Street in Bangor. Mr. Cabrera testified that following a law enforcement search of the Ohio Street property, Petitioner, in coordination with other members of the conspiracy, and with the conspiracy's knowledge, entered the property and recovered a quantity of crack cocaine hidden in an oven door, which quantity amounted to 35 bundles. (Transcript of Dawlin Cabrera Testimony at 41, ECF No. 73.) Additional evidence, including witness testimony, supported a finding that 35 bundles of crack cocaine would weigh 280 grams. (Id. at 27; Transcript of Pari Proffitt Testimony at 28, ECF No. 76.)

         At the conclusion of the trial, the jury returned a guilty verdict. As reflected on the special verdict form, the jury found the conspiracy for which Petitioner was convicted involved 280 grams or more of a mixture or substance which included cocaine base. (ECF No. 70.) Based on the jury's finding, Petitioner was subject to a mandatory minimum sentence of ten years, which sentence the Court imposed after a sentencing hearing. (Judgment, ECF No. 91.)

         Petitioner appealed from the Judgment entered after the sentencing hearing. On appeal, Petitioner argued the Court erred when the Court refused to accept Petitioner's plea, and she asked the First Circuit Court of Appeals to vacate the sentence and remand the matter for resentencing on an Alford plea.[1]United States v. Fader, No. 12-2454 (1st Cir.) On October 24, 2014, the First Circuit upheld the sentence. (ECF No. 101.) While Petitioner did not raise any other issue on ...


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