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Curley v. United States

United States District Court, D. Maine

May 24, 2017

PATRICK M. CURLEY, 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 Patrick M. Curley moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 119.) Following a guilty plea, Petitioner was convicted of extortion. The Court sentenced Petitioner to 24 months in prison, to be followed by a term of one year of supervised release. The First Circuit affirmed the judgment on appeal. (United States v. Curley, No. 15-1150 (1st Cir. Feb. 8, 2016).)

         Petitioner claims that his plea was not knowing and voluntary, that the Government committed prosecutorial misconduct, and that his counsel provided ineffective assistance. The Government has moved for summary dismissal.

         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

         Petitioner was indicted in March 2013 on a single count of extortion, 18 U.S.C. § 875(d). (Indictment, ECF No. 2.) The indictment alleged that from April to August of 2010, in Maine and elsewhere, Petitioner transmitted communications that alleged sexual harassment and discrimination and that threatened to injure the reputation of the addressee in order to extort money. (Id.) Petitioner moved to dismiss the indictment, which motion the Court denied. (Motion to Dismiss, ECF No. 24; Order on Motion to Dismiss, ECF No. 34.)

         Following a change of plea hearing in April 2014, the Court accepted Petitioner's guilty plea. (Minute Entry, ECF No. 72; Plea Tr., ECF No. 114.) During the plea colloquy, Petitioner, in response to the Court's questions, told the Court that the facts set forth in the second revised prosecution version were accurate. (Plea Tr. at 14-16; Second Revised Prosecution Version, ECF No. 69.)

         The prosecution version states the following: Petitioner applied for a security job at a Maine-based company, and several days after an interview for the position, Petitioner sent an email to the interviewer accusing her and her husband of sexual harassment. (Second Revised Prosecution Version at 1-2.)[1] In the email, Petitioner asserted that he would notify the company's president of the conduct and have his attorney initiate legal proceedings. (Id. at 1.) Petitioner sent an email the next day claiming sexual harassment and discrimination. (Id. at 1-2.) Petitioner knew the allegations were untrue, and he either knew or should have foreseen that they would be perceived as a threat to the reputation of the interviewer. (Id. at 2.) Petitioner's intent was “to obtain money or something of value . . . to which he had no valid claim of right.” (Id. at 2.) In the following months, Petitioner reiterated the claims to the company's general counsel by telephone and email. (Id.) In July 2010, Petitioner's attorney drafted and sent a letter to the company's attorney reiterating the claims and making a settlement demand. (Id.)

         After judgment entered following the plea, Petitioner, proceeding pro se, appealed to the First Circuit. (Curley, No. 15-1150 (1st Cir. Aug. 18, 2015).) The First Circuit held that this Court had subject matter jurisdiction; that the indictment was sufficient; that the Court did not err in conducting the plea colloquy; and that the unconditional plea “waived all non-jurisdictional challenges to the resulting conviction, save claims that the plea was not knowing and voluntary.” (Curley, No. 15-1150 (1st Cir. Feb. 8, 2016).) The First Circuit also concluded that none of Petitioner's other arguments on appeal was jurisdictional or had merit. (Id. at 1-2.) The Supreme Court denied Petitioner's petition for a writ of certiorari. (Curley v. United States, No. 15-9261 (U.S. June 13, 2016).)

         Petitioner asserts that he placed his section 2255 motion in the prison mailing system on November 12, 2016. (Motion at 13.) The motion was filed on November 15, 2016. (Id. at 1.) The Government does not dispute that the motion was timely filed.[2] (Response, ECF No. 147 at 4 n.2.) The Government requests summary dismissal.[3] (Id. at 1.)

         The Government represents that Petitioner has completed the prison term, and that he will be on supervised release until January 10, 2018. (Response at 5.)

         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).

         When a petitioner raises a claim “for the first time on habeas, he must show both ‘cause' that excuses the procedural default and ‘actual prejudice' resulting from the alleged error.” Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). Alternatively, a petitioner may demonstrate actual innocence as a basis for habeas relief. Bousley, 523 U.S. at 622. “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Id. at 623.

         In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the federal constitutional standard by which claims of ineffective assistance of counsel are evaluated; Strickland requires a petitioner to demonstrate that “counsel's representation fell below an objective standard of reasonableness, ” and 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 688, 694. A court need not “address both components of the inquiry if the defendant makes an insufficient showing on one . . . .” 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).

         A petitioner must 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). “[A] habeas petitioner is not automatically entitled to a hearing and normally should not receive one if his allegations are ‘vague, conclusory, or palpably incredible.'” David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). The First Circuit has held that a Petitioner who “fails to reasonably substantiate his ineffective assistance of counsel claim with any material issues of fact . . . has not ‘overcome the presumption of regularity which the record . . . imports . . . .'” United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984) (quoting Walker v. Johnston, 312 U.S. 275, 286 (1941)). “[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). 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).

         B. Claims and Analysis

         1. Subject matter jurisdiction and related claim of ...


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