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Michaud v. United States

United States District Court, D. Maine

March 14, 2017

MARIE ANGEL MICHAUD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          AMENDED [1] RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          John C. Nivison U.S. Magistrate Judge

          In 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.)

         In 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. 73.)

         Following 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 motion.

         I. 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. (Id.)

         On June 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.

         At the 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.)

         Petitioner's 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.

         II. Discussion

         A. ...


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