United States District Court, D. Maine
KEVIN ST. HILL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DECISION AND ORDER ON PETITIONER'S MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
St. Hill moves, pursuant to 28 U.S.C. § 2255, to vacate,
set aside, or correct his sentence. The Government moves for
summary dismissal of Mr. St. Hill's § 2255 motion.
Because Mr. St. Hill presents credible evidence to support
his claim of ineffective assistance of counsel regarding
whether one of the prior convictions used to compute his
criminal history category was a misdemeanor conviction and
not properly countable, the Court denies the Government's
Motion for Summary Dismissal and orders expedited further
proceedings as Mr. St. Hill might be entitled to be released
from incarceration in the near future.
September 3, 2013, the Court sentenced Kevin St. Hill to 84
months in prison for distribution of oxycodone in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). J.
(ECF No. 50). On October 1, 2014, the Court of Appeals for
the First Circuit affirmed the sentence on appeal. United
States v. St. Hill, 768 F.3d 33 (1st Cir. 2014);
Op. (ECF No. 62). On April 23, 2015, on a sua sponte
motion, the Court, in accordance with the 2014 Drug Reduction
Act, modified Mr. St. Hill's sentence to 70 months in
prison. Sua Sponte Mot. for Sentence Modification &
Sch. Order (ECF No. 68); Order Regarding Mot. for
Sentence Reduction Pursuant to 18 U.S.C. §
3582(c)(2) (ECF No. 69) (Sentence Reduction
15, 2015, Mr. St. Hill filed a pro se motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255,
and a memorandum in support of that motion. Mot. Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Fed. Custody (ECF No. 71); id.
Attach. 1 Mem. of Law in Supp. of Mot. to Vacate, Set
Aside, or Correct Sentence Pursuant to Section 2255
(Pet'r's Mem.). He also filed a motion to
amend his § 2255 motion. Letter Mot. from Kevin St.
Hill to John A. Woodcock, Jr. (June 16, 2015) (ECF No.
75) (Pet'r's Mot. to Amend). On October 22,
2015, the Government moved for summary dismissal of Mr. St.
Hill's motion. Gov't's Mot. for Summ.
Dismissal of Def.'s Mot. Under 28 U.S.C. § 2255
(ECF No. 85) (Gov't's Mot.). On November 2,
2015, Mr. St. Hill filed a reply. Reply to
Gov't's Mot. for Summ. Dismissal of Def.'s 2255
Pet. (ECF No. 86) (Pet'r's Reply).
February 22, 2016, after Mr. St. Hill filed his § 2255
motion, the Court of Appeals for the First Circuit recalled
its mandate, reissued its judgment, and vacated its October
1, 2014 judgment. Order of Ct. (ECF No. 87). Mr. St.
Hill then filed a petition for certiorari with the United
States Supreme Court and, because the judgment was not final
and not exhausted, the Court stayed further proceedings on
the § 2255 motion on June 17, 2016 and continued the
stay on August 10, 2016. Order to Stay (ECF
No. 90); Order to Continue Stay (ECF No. 91). On
January 9, 2017, the Supreme Court denied Mr. St. Hill's
petition for certiorari. St. Hill v. United States,
137 S.Ct. 619 (2017). On February 21, 2017, the Court lifted
the stay. Order on Stay (ECF No. 92).
STATEMENT OF FACTS
October 5, 2012, the Government filed a one-count complaint
charging Kevin St. Hill with distribution of oxycodone in
violation of 21 U.S.C. § 841(a)(1). Compl. (ECF
No. 1). The affidavit filed with the complaint stated that
Mr. St. Hill sold $600 worth of oxycodone (20 pills) to an
undercover agent. Aff. in Supp. of Criminal Compl.
¶ 9 (ECF No. 1). On December 19, 2012, Mr. St. Hill
pleaded guilty to the drug distribution charge in the
indictment. Min. Entry (ECF No. 23).
September 3, 2013 sentencing hearing, the Court calculated
Mr. St. Hill's guideline sentence range pursuant to the
United States Sentencing Guidelines. In accordance with the
recommended sentencing guideline findings in the Presentence
Investigation Report (PSR) prepared by the United States
Probation Office, the Court found that Mr. St. Hill had a
criminal history category of IV and a total offense level of
25. PSR ¶¶ 19, 27. The category IV finding
was based on a total of five criminal history points for past
convictions, and two criminal history points pursuant to
U.S.S.G. § 4A1.1(d) because Mr. St. Hill committed the
instant offense while under a criminal justice sentence, for
a total of seven criminal history points. Id.
¶¶ 23-27. The recommended sentencing
range was 84 to 105 months. Id. ¶ 47. The Court
sentenced Mr. St. Hill to be incarcerated for 84 months, the
low end of the recommended guideline sentence range.
J. (ECF No. 50).
to Mr. St. Hill's § 2255 motion is whether a 2011
New York state court conviction for tampering with evidence
was a felony or misdemeanor conviction. In the PSR, the
Probation Office characterized the conviction as a Tampering
With Physical Evidence conviction, a Class E felony.
PSR ¶ 24; see also N.Y. Penal Law
§ 215.40. At an April 30, 2013 presentence conference,
the Court questioned this conviction and how it should be
counted under the sentencing guidelines. Tr. of
Proceedings, Presentence Conf. 10:10-11:25 (ECF
No. 59) (Presentence Conf. Tr.). The PSR revealed
that Mr. St. Hill had thrown a bag of marijuana on the ground
when approached by an officer and the Court expressed the
view that perhaps the evidence tampering was more like giving
false information to an officer or failing to obey or
hindering an officer, neither of which would count as a
conviction under U.S.S.G. § 4A1.2(c)(1). Id.
10:14-22; PSR ¶ 24. The Court noted that Mr.
St. Hill had been sentenced to only one day for this 2011
conviction and asked defense counsel to look into the
conviction and address it in her sentencing memorandum.
Presentence Conf. Tr. 10:23-11:16 (“So why
don't you take a look at that and put it in your
memo”). Defense counsel promised to do so. Id.
11:17 (“More than happy to do it”).
counsel filed a sentencing memorandum on May 14, 2013 and
The preamble to the list contained in [U.S.S.G. §
4A1.2(c)] states, “Sentences for all felony offenses
are counted.” Tampering with Physical Evidence is a
violation of NY PENAL § 215.40 and is a Class E felony.
Therefore, it must be scored.
Def.'s Mem. Regarding Sentencing at 16 (ECF No.
34) (Def.'s Sentencing Mem.). At the sentencing
hearing, defense counsel reiterated her conclusion that the
tampering with evidence conviction was a felony and counted
as one point under the sentencing guidelines. Sentencing
Tr. 5:9-11 (“Because it turns out that that
conviction was a felony conviction, we had to agree that it
did count for a - - one point, which was the count in
paragraph 24”). At the sentencing hearing, the Court
assessed a Criminal History Category of IV based, in part, on
the assumption that the 2011 conviction in New York state
court for tampering with evidence was a felony conviction
thereby counting as one criminal history point.
Sentencing Tr. 5:9-11, 10:2-4, 11:13-18.
Hill's sentence calculation also included a New York
Driving While Ability Impaired (DWAI) disposition.
PSR ¶ 26. The PSR noted that although the
conviction involved only a traffic infraction, the offense
“is nevertheless counted for criminal history
purposes.” Id. (citing U.S.S.G. § 4A1.2,
cmt. n.5). The inclusion of the offense in Mr. St.
Hill's criminal history was unchallenged. The impact of
the offense on Mr. St. Hill's sentence was twofold.
First, a criminal history point was assessed. Id. In
addition, the offense contributed to a two-point enhancement
because Mr. St. Hill was serving a conditional discharge
sentence on the DWAI when he engaged in oxycodone
distribution. Id. ¶¶ 26-27.
the Court modified Mr. St. Hill's sentence in accordance
with the 2014 Drug Reduction Act, the Court found, consistent
with the Revised Presentence Investigation Report (R-PSR) and
the parties' agreement, that Mr. St. Hill's total
offense level was 23, which resulted in a revised guideline
range of 70-87 months. See R-PSR ¶¶ 13-14.
On April 23, 2015, the Court reduced Mr. St. Hill's term
of imprisonment to 70 months, again the low end of the
newly-calculated guideline sentence range. Sentence
Reduction Order at 1.
support of his § 2255 motion, Mr. St. Hill filed three
exhibits. The first is a Certificate of Disposition from the
Criminal Court of the City of New York regarding the
tampering with evidence charge. Pet'r's Mem.
Attach. 2 Ex. A at 2 (Certificate of
Disposition-Tampering). The certificate reflects that on
January 16, 2011, Mr. St. Hill pleaded guilty and was
sentenced on a charge identified only as
second and third exhibits relate to the DWAI conviction. The
second is a letter dated June 5, 2015, from Attorney Peter E.
Shapiro of The Legal Aid Society, addressed to Mr. St. Hill.
Pet'r's Mot. to Amend Attach. 1 Ex.
A at 2. The letter states that on June 2, 2015, for New
York docket number 2012QN025218 (the DWAI offense), Mr. St.
Hill's warrant was vacated and he was resentenced to time
served. Id. The third is a Certificate of
Disposition from the Criminal Court of the city of New York;
this certificate reflects that on May 8, 2012, Mr. St. Hill
pleaded guilty to the DWAI charge and Judge Griffin of the
Criminal Court of the city of New York sentenced him to a
conditional discharge of one year. Id. at 3. Then,
on June 2, 2015, Judge Hart of the Criminal Court of the city
of New York resentenced Mr. St. Hill for the DWAI offense
exclusively to time served. Id.
THE PARTIES' POSITIONS
Kevin St. Hill's Motion
Hill first contends his counsel provided ineffective
assistance at sentencing because she failed to research and
obtain the disposition for his New York conviction for
tampering with physical evidence and because she agreed with
the erroneous representation in the PSR that Mr. St. Hill was
convicted of a felony when, in fact, he had been convicted on
an attempted tampering charge, a misdemeanor.
Pet'r's Mem. at 2-4.
Hill also asserts that counsel provided ineffective
assistance at sentencing because she failed to object to the
PSR, which counted his DWAI New York driving conviction in
his criminal history score. Id. at 4-5. According to
Mr. St. Hill, the offense should not have been counted
because the offense was a traffic violation, not a crime,
under New York law. Id. Mr. St. Hill asserts
counsel's error regarding the DWAI resulted in not just
one but three erroneous criminal history points because he
was within the term of a conditional discharge sentence
imposed for the DWAI when he committed the oxycodone
distribution offense. Id. at 5-7. In an
amendment to his motion, Mr. St. Hill provides evidence that
suggests a New York court vacated the DWAI sentence.
Pet'r's Mot. to Amend. He argues, therefore,
the sentence should not be counted. Id.
The Government's Motion for Summary Dismissal
Government argues that Mr. St. Hill cannot prevail on his
argument regarding the tampering charge because he agreed
with the PSR, and because he was not prejudiced by the
characterization of the conviction as a felony.
Gov't's Mot. at 13-14. As to the
prejudice argument, the Government contends the Court would
not have imposed a lesser sentence, particularly given the
Court's findings that Mr. St. Hill narrowly avoided
enhancements based on a leadership role and use of a firearm,
and that Mr. St. Hill had an “unremitting history of
criminality.” Id. at 15 (quoting
Sentencing Tr. at 11:15-16).
Mr. St. Hill's claims related to the DWAI conviction, the
Government argues that based on clear language in the
Sentencing Guidelines that requires all such offenses be
counted, counsel's performance was not substandard.
Id. at 16-17. The Government further contends that a
conditional discharge sentence is a criminal justice sentence
for purposes of the Guidelines, regardless of how New York
classifies the offense. Id. at 18-20. Finally, the
Government maintains that counsel's performance cannot be
deemed deficient to the extent Mr. St. Hill relies on the
fact that the Criminal Court of the city of New York
subsequently vacated Mr. St. Hill's DWAI sentence and
resentenced him to time served. Id. at 20.
Kevin St. Hill's Reply
reply, Mr. St. Hill maintains that the presented record
demonstrates that his defense counsel's performance was
deficient and further argues that this deficient performance
caused him prejudice because he had previously been given a
term of imprisonment at the low end of the guideline range
and therefore there exists a reasonable probability that if
his guideline range had been recalculated, he would have
received a lower term of imprisonment than 84 months.
Pet'r's Reply at 1-2. Mr. St. Hill