United States District Court, D. Maine
AMENDED  RECOMMENDED DECISION ON 28
U.S.C. § 2255 MOTION
C. Nivison U.S. Magistrate Judge
this action, Petitioner Marie Angel Michaud moves, pursuant
to 28 U.S.C. § 2255, to vacate, set aside or correct her
sentence. (Motion, ECF No. 64.) On September 30, 2016, the
Court revoked Petitioner's probation upon
Petitioner's admission that she engaged in certain
unlawful conduct that was the subject of pending state
charges, and sentenced her to six months in prison, to be
followed by 24 months of supervised release. (Minute Entry,
ECF No. 55; Revocation Judgment, ECF No. 56.)
support of her section 2255 motion, Petitioner contends that
her counsel provided ineffective assistance at sentencing
because counsel advised that if she admitted to the conduct
that is the subject of the state charges, he would request a
disposition that did not include incarceration. Petitioner
maintains her counsel did not argue as he advised. Petitioner
also contends she is factually innocent of the state charge
because the State did not pursue the charge against her, but
instead proceeded against her husband. (Motion at 4 - 5.) In
response to Petitioner's section 2255 motion, the
Government moved for summary dismissal. (Response, ECF No.
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
Factual Background and Procedural History
Following a plea of guilty, Petitioner was convicted of
Social Security Fraud, and the Court sentenced her to a
three-year term of probation on September 30, 2015.
(Judgment, ECF No. 16.) The terms of probation required that
she not commit another federal, state, or local crime.
22, 2016, the Office of Probation petitioned the Court to
revoke Petitioner's probation, citing state misdemeanor
criminal charges filed against Petitioner. (Petition for
Warrant or Summons for Offender under Supervision, ECF No.
36.) The revocation petition summarized the bases of the
state charges as follows:
On March 16, 2016, the defendant commenced employment at the
Big Apple in Mexico, ME.
On May 31, 2016, MPD Chief Roy Hodsdon contacted this officer
to report he suspected the defendant was involved in a recent
theft. He advised a debit card went missing from the Big
Apple in Mexico, ME, and was then used in various stores
throughout town by a man who appeared to be the
defendant's husband. He sent several surveillance photos
to this officer, who confirmed the photos appeared to be of
the defendant's husband. Later that day, Chief Hodsdon
contacted this officer to report he interviewed the
defendant, who admitted to involvement in the conduct and was
being charged with three misdemeanor offenses: Theft by
Unauthorized Taking or Transfer, Misuse of Identification,
and Receiving Stolen Property.
Chief Hodsdon sent this officer a copy of his report as well
as body camera footage of an interview with the defendant.
This officer reviewed those materials and it is alleged that
on May 10, 2016, Cynthia Mowatt misplaced her debit card
while at the Big Apple store in Mexico, ME. Another customer
located the card and provided it to the defendant, a store
employee. It is alleged that the defendant provided the card
to her husband, who then used the card to purchase items at
Hannaford, Advanced Auto, Walmart, VIP, and Big Apple. Those
purchases totaled $360.00.
revocation hearing, through direct questioning by the Court,
Petitioner informed the Court that she wished to admit the
underlying conduct and waive her right to an evidentiary
hearing. As part of her admission, Petitioner informed the
Court that she had reviewed the revocation charge and
revocation report, understood both, discussed them with her
lawyer, wanted to admit the alleged conduct, and did not
disagree with any of the report's factual content. (Rev.
Tr. at 3 - 6.)
attorney argued for the Court to continue probation, without
a term of incarceration, and maintained that Petitioner would
benefit if reintroduced to the SWiTCH program. (Id.
at 7 - 11.) Petitioner addressed the Court as well, and made
a similar request. (Id. at 12.) The Court imposed a
six-month term of incarceration.