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Nobrega v. United States

United States District Court, D. Maine

January 30, 2017

DOMINGOS NOBREGA, a/k/a Shawn Alan Nobrega, 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 Domingos Nobrega, also known as Shawn Alan Nobrega, moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 287.) Following a jury trial in May 2011, Petitioner was convicted of being a felon in possession of a firearm, pursuant to 18 U.S.C. §§ 922(g)(1), 924(a)(2). (Judgment, ECF No. 228 at 1-2; Jury Verdict, ECF No. 98.) The Court sentenced him to 120 months in prison, the statutory maximum, based in part on the Court's finding that Petitioner's armed standoff with law enforcement posed an extreme risk to both police and the public. (Sentencing Tr., ECF No. 245 at 118.) The First Circuit upheld the conviction and sentence on appeal. United States v. Nobrega, No. 12-1924 (1st Cir. May 20, 2014).

         In Petitioner's section 2255 motion, he asserts claims of ineffective assistance of both trial counsel and sentencing counsel. Several of the claims relate to issues Petitioner raised previously regarding the testimony of a particular grand jury witness. Petitioner also contends that trial counsel failed adequately to challenge the indictment and certain trial testimony, and that trial counsel failed to introduce certain evidence. Petitioner also alleges prosecutorial misconduct. Petitioner argues that sentencing counsel failed adequately to object to the offense level under the sentencing guidelines, to Petitioner's criminal history, and to facts asserted in the presentence investigation report.

         In May 2016, Petitioner submitted a supplemental filing to challenge the sentence on the basis of Johnson v. United States, 135 S.Ct. 2551 (2015). (ECF Nos. 335, 336.) The Court has ordered a stay of the Johnson claim only, pending the Supreme Court's decision in Beckles v. United States, No. 15-8544. This recommended decision addresses Petitioner's other claims.

         Following a review of Petitioner's motion and the Government's request for dismissal, I recommend that the Court dismiss all of Petitioner's claims except for the Johnson claim, which has been stayed pending Beckles.

         I. Factual Background and Procedural History

         Pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Petitioner was indicted in November 2010 for being a felon in possession of a firearm. (Indictment, ECF No. 16.) The indictment alleged that from October 23, 2010, to October 24, 2010, Petitioner possessed a Glock 9mm handgun, after he had been convicted of the following two felonies: (1) assault with a deadly weapon on a Government officer in North Carolina; and (2) assault and battery on a police officer in Virginia. (Id.)

         Following a two-day trial in May 2011, a jury found Petitioner guilty. (Trial Tr. I, II, ECF Nos. 136, 137; Jury Verdict; Judgment at 1.) At sentencing in July 2012, the Court found that Petitioner had waived his right to review the revised presentence investigation report, and the Court accepted the report for purposes of sentencing. (Sentencing Tr. at 11.)

         The Court determined the guidelines range to be 120 months, based on a base offense level of 26, a criminal history category of VI, and a statutory maximum of 120 months. (Id. at 61.) The Court declined to impose an enhancement for obstruction of justice. (Id.) The Court considered all of the sentencing factors, particularly the history and characteristics of Petitioner and the nature and circumstances of the offense, pursuant to 18 U.S.C. § 3553(a). (Id. at 111-12.) The Court noted that Petitioner's criminal history was significant because it included two prior violent felonies, and because the firearms possession offense for which Petitioner was being sentenced posed an extreme danger to police and the public. (Id. at 111, 118.) The Court also observed that the events that led to the arrest, including threats to use a weapon and a lengthy resistance to law enforcement, raised significant concern about Petitioner's tendency toward violence. (Id. at 113, 118.) The Court imposed a term of three years of supervised release to follow the 120-month prison term. (Id. at 119; Judgment at 2-3.)

         Acting pro se, Petitioner appealed from the conviction and sentence, and the First Circuit affirmed.[1] United States v. Nobrega, No. 12-1924 (1st Cir. May 20, 2014). As part of his appeal, Petitioner raised a Confrontation Clause argument. The Court rejected the argument and held: (1) Petitioner waived a Confrontation Clause challenge to the indictment because the argument was not raised before trial; (2) Petitioner's rights were not violated at trial, because the record revealed that no out-of-court statement of the grand jury witness at issue had been admitted at trial, and the limited references by witnesses at trial to conversations with the grand jury witness did not communicate the contents of statements the grand jury witness made to police, id. (citing United States v. Meises, 645 F.3d 5, 22 n.25 (1st Cir. 2011)); and (3) Petitioner's challenge to the sentence based on the Confrontation Clause failed because Confrontation Clause rights do not apply at sentencing, id. (citing United States v. Díaz-Arias, 717 F.3d 1, 27 (1st Cir. 2013)).

         The First Circuit further held that the record did not support Petitioner's claim of vindictive prosecution; that the evidence was sufficient to support the verdict; and that the trial court did not abuse its discretion when it overruled Petitioner's objection to the admission in evidence, pursuant to Fed.R.Evid. 403, of a “no trespassing” sign. Id. Finally, the First Circuit affirmed the sentence on the basis that, contrary to Petitioner's argument, Alleyne v. United States, 133 S.Ct. 2151 (2013), did not apply because there was no statutory minimum sentence that applied to the offense of conviction. Id.

         In June 2014, Petitioner filed a petition for a writ of certiorari. (Nobrega v. United States, No. 13-10581, Supreme Court docket sheet.) The Supreme Court denied certiorari on October 6, 2014. Nobrega v. United States, 135 S.Ct. 139 (2014).

         Petitioner also filed several post-judgment motions.[2] In its July 2014 order on Petitioner's motions for a new trial and sentencing, and in its December 2015 order on Petitioner's grand jury motions, the Court decided many of the same underlying issues Petitioner raises in his section 2255 claims.[3] (Order, ECF No. 281 at 8-13; Order, ECF No. 320 at 5-13.) Because the orders are all but dispositive of the related claims contained in Petitioner's section 2255 motion, the relevant findings and conclusions contained in the orders are described in some detail as part of the procedural history of the case.

         In its order on Petitioner's motions for a new trial and new sentencing, the Court (1) noted Petitioner's allegations that the grand jury witness had framed him, and that she had a financial incentive to do so; (2) discussed Petitioner's Confrontation Clause argument and noted that Petitioner did not succeed on the argument on appeal; (3) accepted the representations of lawyers for Petitioner and the Government that the grand jury witness would have invoked her Fifth Amendment right to remain silent, had she been called to testify at trial; and (4) concluded that, even if the grand jury witness had been prosecuted, which was a decision over which the Court had no authority, the prosecution of the witness would not have exonerated Petitioner. (Order, ECF No. 281 at 8-13.)

         In February 2015, Petitioner filed a motion to compel the disclosure of grand jury material. (Motion, ECF No. 283.) In its decision on the motion, the Court explained that Petitioner asserted he needed the material (1) to prove his claim of ineffective assistance for failure to subpoena the grand jury witness at trial; and (2) to demonstrate prosecutorial misconduct on the basis that the Government permitted the witness to testify falsely before the grand jury. (Order, ECF No. 320 at 2, 5-6.)

         The Court, after an in camera review of the grand jury transcript, denied the motion because the testimony of the grand jury witness was consistent with the testimony of other witnesses and with exhibits at trial, and thus Petitioner failed to demonstrate the “compelling necessity, ” United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958), or “particularized need, ” Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 222-23 (1979), required for production of a grand jury transcript. (Order at 3, 8.) The Court concluded Petitioner was not entitled to the transcript for the additional reason that he was “really seeking to nullify the indictment itself, ” which “he may not do, particularly after a trial jury has found him guilty beyond a reasonable doubt of the charge that the grand jury found was supported by probable cause.” (Id.) (citing Costello v. United States, 350 U.S. 359, 359-63 (1956) (holding that as long as the grand jury is legally constituted and unbiased, a defendant may not challenge an indictment on the basis of inadequate or incompetent evidence)). The Court also determined that because the grand jury witness did not testify at trial, the Jencks Act, 18 U.S.C. § 3500, did not apply. (Order at 9.)

         On Petitioner's argument that he needed the grand jury material to support a claim of ineffective assistance of counsel in the grand jury proceedings, the Court found that trial counsel, consistent with United States v. Mandujano, 425 U.S. 564, 581 (1976), was not present in the grand jury proceedings.[4] (Order at 9-10.) The Court also concluded that, had the grand jury witness been prosecuted, and had she testified at Petitioner's trial, the testimony would not have been a defense to the criminal charge against Petitioner. (Id. at 11.) Based on United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973), the Court rejected Petitioner's argument that counsel should have forced the witness to take the stand and assert the Fifth Amendment, and then should have impeached the witness with her grand jury testimony. (Id. at 12-13.)

         In Ground One of the section 2255 motion, Petitioner contends that he received ineffective assistance from trial counsel (1) for shortcomings in connection with the grand jury witness, particularly for the failure to investigate and challenge alleged false statements of the grand jury witness during the grand jury process; for the failure to challenge the indictment on grounds that the grand jury witness's false testimony established there was insufficient evidence to support probable cause; for filing a motion, without Petitioner's knowledge and consent, to inquire whether the grand jury witness would invoke her Fifth Amendment right against self-incrimination; and for the failure to subpoena the grand jury witness to testify at trial; (2) for failure to challenge evidence of possession outside the period alleged in the indictment; (3) for the failure to challenge probable cause and trial evidence of the appearance of the gun and the lack of fingerprints on the gun; (4) for the failure to exclude evidence of an emergency telephone call trace record; and (5) for the failure to obtain character witnesses to testify on behalf of Petitioner. (Motion at 4-8; Attachment, ECF No. 288 at 4, 20.) Petitioner also alleges prosecutorial misconduct related to evidence of Petitioner's possession of the gun at issue (Motion at 8; Reply, ECF No. 316 at 27), and related to statements law enforcement made to obtain a telephone trace record. (Attachment, ECF No. 288 at 4, 20; Reply at 20.)

         In Ground Two of the section 2255 motion, Petitioner contends that he received ineffective assistance of sentencing counsel for (1) the failure to object to the base offense level, and the failure to subpoena the grand jury witness to testify to facts relevant to the base offense level; (2) the failure to challenge inaccuracies in the presentence investigation report regarding Petitioner's criminal history; and (3) the failure to object to inaccuracies in the presentence investigation report regarding Petitioner's background.[5] (Motion at 11-13.)

         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).

         The burden is on the section 2255 petitioner to 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). “[I]ssues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion.” Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994) (quotation marks omitted).

         “[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). The “cause” test is “a ‘fairly tolerant' one because ‘the Constitution pledges to an accused an effective defense, not necessarily a perfect defense or a successful defense.'” Moreno-Espada v. United States, 666 F.3d 60, 65 (1st Cir. 2012) (quoting Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994)). “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

         That counsel's strategy may have proven unsuccessful does not in itself render counsel's performance deficient. Id. at 699 (concluding that “there can be little question, even without application of the presumption of adequate performance, that trial counsel's defense, though unsuccessful, was the result of reasonable professional judgment”).

         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. Id. 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).

         “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 Machibro ...


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