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Hill v. United States

United States District Court, D. Maine

March 14, 2017

KEVIN ST. HILL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          DECISION AND ORDER ON PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Kevin 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.

         I. PROCEDURAL BACKGROUND

         On 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 Order).

         On May 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).

         On 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).

         II. STATEMENT OF FACTS

         On 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).

         At the 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).

         Critical 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”).

         Defense counsel filed a sentencing memorandum on May 14, 2013 and wrote:

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.).[1] 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.

         Mr. St. 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.

         When 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.

         In 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 “110-215.40.” Id.

         The 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.

         III. THE PARTIES' POSITIONS

         A. Kevin St. Hill's Motion

         Mr. St. 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.

         Mr. St. 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.

         B. The Government's Motion for Summary Dismissal

         The 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).

         Regarding 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.

         C. Kevin St. Hill's Reply

         In his 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 ...


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