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Widi v. United States

United States District Court, D. Maine

August 31, 2017

DAVID WIDI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION AND MOTION TO CERTIFY QUESTION

          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner David Widi moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 369.) Petitioner also moves to certify a question to the New Hampshire Supreme Court regarding the interpretation of a state statute. (Motion, ECF No. 395.)[1]

         Following a jury trial, Petitioner was convicted of possession of firearms and ammunition by a felon, and of manufacturing marijuana; the Court sentenced Petitioner to 108 months in prison, to be followed by three years of supervised release.[2] The First Circuit affirmed the conviction and sentence on appeal. United States v. Widi, 684 F.3d 216 (1st Cir. 2012). The Government requests summary dismissal of the section 2255 motion. (Response, ECF No. 422 at 1.)

         Following a review of Petitioner's motions and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss both the section 2255 motion and the motion to certify a question of state law to the New Hampshire Supreme Court.

         I. Factual Background and Procedural History

         Petitioner was convicted of possession of firearms and ammunition by a felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1); and manufacturing marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count 2).[3] (Judgment, ECF No. 258 at 1.) The Court sentenced Petitioner to prison terms of 108 months on Count 1, and 60 months on Count 2, with the terms to be served concurrently, to be followed by terms of three years of supervised release on each of the counts, with the terms to be served concurrently. (Id. at 2-3.)

         On January 7, 2013, following Petitioner's unsuccessful appeal, the Supreme Court denied Petitioner's petition for a writ of certiorari. Widi v. United States, 133 S.Ct. 893 (2013).

         In April 2013, Petitioner filed a motion for a new trial in which motion he argued that there was no valid predicate felony, and that a Franks hearing was justified based on new evidence. (Motion to Vacate Conviction and Order a New Trial, ECF No. 332.) The Court denied the motion. (Order on Defendant's Motion to Vacate Conviction, ECF No. 341 at 1.) The First Circuit affirmed. (United States v. Widi, Nos. 13-2089, 13-2442 (1st Cir. Apr. 23, 2015) (“We have carefully reviewed the parties' briefs and relevant portions of the record, and we conclude for substantially the same reasons as the district court that a new trial was not in order.”).) The Supreme Court denied certiorari. Widi v. United States, No. 15-6202 (U.S. Apr. 23, 2015).

         Petitioner asserts that he placed his section 2255 motion in the prison mailing system on January 6, 2014. (Motion at 45.) The Government does not dispute the timeliness of the motion.[4] (Response at 2 n.2.) Upon Petitioner's motions, the action was stayed, and the stay was extended to December 2015. (Motions to Stay, ECF Nos. 371, 376, 380; Orders, ECF Nos. 372, 378, 389.)

         Petitioner's section 2255 motion asserts 26 numbered grounds. In December 2015, the Court granted Petitioner's motion for leave to amend or supplement his section 2255 motion to add an additional ground. (Motion for Leave to Amend, ECF No. 392; Supplemental Claim, ECF No. 392-1; Order, ECF No. 394.)

         In the same month, Petitioner also filed a motion to certify a question to the New Hampshire Supreme Court regarding the interpretation of a New Hampshire statute. (Motion to Certify, ECF No. 395.) In January 2016, the Government filed a response to the motion to certify a question to the New Hampshire Supreme Court (Response, ECF No. 396), and in June 2016, the Government filed a combined response to the section 2255 motion, the supplemental claim, and the motion to certify. (Response, ECF No. 422.)[5]

         Upon Petitioner's motion, the Court stayed the case pending the First Circuit's decision on Petitioner's appeal of the denial of Petitioner's request for counsel. (Motion to Stay, ECF No. 431; Orders, ECF Nos. 434, 435.) The First Circuit dismissed the appeal as interlocutory. (Widi v. United States, No. 16-1557 (1st Cir. Nov. 14, 2016).) Petitioner then filed a motion for leave to conduct discovery; the Court denied the motion. (Motion for Leave to Conduct Discovery, ECF No. 439; Order, ECF No. 448.)

         In May 2017, Petitioner filed a reply in support of his section 2255 motion. (Reply, ECF No. 451.)

         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). “[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).

         A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127-28 (1st Cir. 2002). 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)).

         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. Detention during search (Ground 1)

         Petitioner alleges that he was illegally detained during the execution of a search warrant at his home. (Motion at 4; Attachment, ECF No. 369-1 at 2.) Petitioner argues that Bailey v. United States, 568 U.S. 186 (2013), which was decided after the First Circuit's 2012 decision on Petitioner's appeal, provides new grounds for relief.[6] (Attachment at 3-4.) In support of his argument, Petitioner refers to the Court's decision on a motion to dismiss a civil case in which Petitioner alleged constitutional torts related to his criminal conviction. (Widi v. McNeil, No. 2:12-cv-00188-JAW, Order Denying Plaintiff's Motion to Stay; Denying Plaintiff's Motion to Strike; and Granting Defendant McNeil's Motion to Dismiss, ECF No. 170.) In its decision, the Court assumed, without deciding, that Petitioner's detention at a location away from his home would have violated Bailey had the search occurred after Bailey was decided. (Id. at 17.)[7]

         Petitioner, however, cannot rely on Bailey for relief in this case because “the Supreme Court has not held that Bailey applies retroactively to cases on collateral review. ‘Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.'” Reed v. Matevousian, No. 1:15-cv-01019-SKO HC, 2016 WL 7374586, at *9, 2016 U.S. Dist. Lexis 176074, at *25 (E.D. Cal. Dec. 19, 2016) (quoting Teague v. Lane, 489 U.S. 288, 310 (1989)); Pinion v. United States, Nos. 7:09-CR-19-FL-1, 7:13-CV-284-FL, 2017 WL 2266853, at *3, 2017 U.S. Dist. Lexis 77800, at *6 (E.D. N.C. May 23, 2017) (holding, for purposes of an issue of timeliness under 28 U.S.C. § 2255(f)(3), that Bailey involved a limitation on the Supreme Court's holding in Summers, rather than a newly recognized right). Because Bailey does not apply retroactively, Petitioner is not entitled to relief based on Bailey.

         Petitioner's claim is otherwise procedurally defaulted. See Berthoff, 308 F.3d at 127-28. On appeal, Petitioner did not raise the legality of his detention during the search as an issue.[8] United States v. Widi, 686 F.Supp.2d 107, 112 (D. Me. 2010). Specifically, the Court concluded that although Petitioner was in custody for purposes of the Fourth Amendment, he had not been wrongfully detained. Id. at 112. “The Court does not question the officers' right to detain the Defendant while they were executing the warrant. However, the fact that a detention is permissible under the Fourth Amendment does not make the detention any less custodial for Miranda purposes.” Id. (citing Summers, 452 U.S. at 705).

         Petitioner's claim of ineffective assistance also fails because counsel successfully argued that Petitioner was under a de facto arrest when he made the pre-Miranda statements, and Petitioner obtained a favorable result on the suppression motion as to the pre-Miranda statements. Id. at 112-13. (Motion to Suppress, ECF No. 92 at 3.) Counsel's performance thus was not substandard, and Petitioner was not prejudiced. See Strickland, 466 U.S. at 688, 694. Furthermore, Petitioner presents no evidence of actual innocence. See Berthoff, 308 F.3d at 127-28.

         2. Miranda (Ground 2)

         Petitioner alleges counsel's performance was ineffective because counsel failed to argue in the motion to suppress that Petitioner repeatedly requested an attorney and was not provided one. (Motion at 5; Attachment, ECF No. 369-1 at 5.)

         First, the issue as to whether Petitioner was denied his right to counsel is procedurally defaulted because Petitioner did not argue in his motion to suppress that Petitioner had requested counsel and was denied. (Motion to Suppress, ECF No. 92; Supplemental Motion to Suppress, ECF No. 117.)

         In addition, regarding the pre-Miranda statements, the Court noted that Petitioner “succeeded in suppressing evidence seized from his vehicle and pre-Miranda statements made in response to questioning . . . .” Widi, 684 F.3d at 221. Because the motion was successful as to the pre-Miranda statements, Petitioner's ineffective assistance claim fails both prongs of the Strickland test, to the extent he asserts a claim regarding the pre-Miranda statements.

         As to the post-Miranda statements, Petitioner argues essentially that his waiver of Miranda rights was not voluntary because law enforcement did not honor his request for counsel, and that the setting was coercive given his mental condition. (Attachment at 9-10.) At the suppression hearing, officers testified that in their presence, Petitioner received the Miranda warning and waived his Miranda rights. (Suppression Tr., ECF No. 155 at 75, 113.) He then told the officers the safe found inside the home belonged to a friend, and there was a firearm in the safe. (Id. at 76, 113.) At some point, Petitioner began crying and, using an expletive, made an allegedly incriminating statement. (Id. at 76, 114.) The statement, however, was not in response to a question.[9] (Id. at 103.) At Petitioner's request, he consulted with his grandmother by telephone about whether he should give the police the combination to the safe; after the conversation with his grandmother, he told officers he would not provide the combination. (Id. at 115-17.) Petitioner was then transported to the Eliot Police Department, where he was booked, and where he asked to speak with his attorney; he was permitted to do so, and he had a telephone conversation, in the presence of other persons, with his attorney.[10] (Id. at 118-20.) The attorney spoke with the officer and told the officer Petitioner had invoked his Miranda rights and would not answer further questions. (Id. at 122.)

         At trial, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) testified that Petitioner told him that he lived alone in the apartment, that he would not give the agent the combination to the safe, that the safe belonged to a friend and did not belong to Petitioner. (Trial Tr., ECF No. 235 at 41-44.)

         Given that post-Miranda, Petitioner actually asserted his right to counsel, spoke with his counsel, and declined to provide any further information, Petitioner's contention that his post-Miranda statements were coerced or involuntary would have been unpersuasive. (Suppression Tr. at 115-17.) Petitioner has simply not overcome the presumption that counsel's decision not to pursue a voluntariness argument was reasonable. See Strickland, 466 U.S. at 689.

         Furthermore, officers testified at the suppression hearing that Petitioner waived his Miranda rights, and there is no evidence, other than Petitioner's allegations, to the contrary.[11] (Suppression Tr. at 75, 113.) Petitioner's allegations alone do not entitle him to an evidentiary hearing. See David, 134 F.3d at 478. Finally, Petitioner cannot demonstrate prejudice, due to the evidence of guilt independent of his post-Miranda statements. Widi, 684 F.3d at 223.

         3. Predicate conviction (Grounds 3, 4, 5, 6, and Motion to Certify)

         Petitioner alleges counsel provided ineffective assistance based on counsel's failure to challenge on a number of grounds the prior New Hampshire state felony conviction that established Petitioner was a felon for purposes of the federal felon-in-possession charge.[12](Motion at 7-11; Attachment, ECF No. 369-1 at 12-26.) Petitioner argues that, pursuant to 18 U.S.C. § 921(a)(20), his rights had been restored following the prior conviction, and therefore he was not a felon when he possessed the firearms.[13] (Motion at 8; Attachment at 18-20; Motion to Certify, ECF No. 395.) Petitioner contends that law enforcement removed from his apartment, and illegally failed to return to him, a “Two Thirds Release Form” that he maintains would have shown it was legal for him to possess firearms; he also asserts a related due process claim.[14] (Motion at 10; Attachment at 24; Two Thirds Release Form, Attachment to Motion for New Trial, ECF No. 332-1.) Petitioner alleges the prior conviction was a misdemeanor, and counsel failed to argue it did not qualify as a predicate for purposes of the felon-in-possession charge. (Id. at 12.) He also argues he has the right to possess arms under the Second, Ninth, and Tenth Amendments. (Motion at 11; Attachment at 25.)

         Petitioner unsuccessfully argued the prior conviction was a misdemeanor. Widi, 684 F.3d at 224 (noting the argument in Petitioner's pro se brief on appeal, and concluding, following the Court's own review, that Petitioner's stipulation to the prior felony “was appropriate”). The underlying issue is thus precluded from collateral review, and the ineffective assistance claim also fails. See Singleton, 26 F.3d at 240; Tse, 290 F.3d at 465.

         The First Circuit also addressed Petitioner's argument regarding the restoration of his civil rights following the prior conviction. (Widi, Nos. 13-2089, 13-2442 (1st Cir. Apr. 23, 2015). The First Circuit affirmed this Court's determination that although Petitioner's civil rights had been partially restored, his right to serve as a juror was not yet restored when he committed the felon-in-possession offense in 2008, and, therefore, the evidence was not likely to lead to an acquittal. (Id.; Order, ECF No. 341 at 5, 8-11) (citing, inter alia, United States v. Estrella, 104 F.3d 3, 5-6 (1st Cir. 1997) (holding that to qualify as a post-conviction restoration under section 921(a)(20), the rights to vote, to hold public office, and to serve on a jury must all be restored)).[15]

         Because the restoration-of-rights issue has been rejected as a matter of law on the merits, the claim is precluded from collateral review, and the due process and ineffective assistance claims also fail.[16] See Singleton, 26 F.3d at 240; Tse, 290 F.3d at 465. For the same reason, there is no basis on which to certify a question to the New Hampshire Supreme Court.

         4. Speedy Trial Act (Grounds 7, 8, 9)

         Petitioner alleges his rights under the Speedy Trial Act, 18 U.S.C. § 3161(b), were violated as to both the original and superseding indictments, and he asserts related claims of ineffective assistance.[17] (Motion at 13-14; Attachment, ECF No. 369-1 at 27, 31.) In addition, Petitioner alleges counsel unnecessarily delayed the trial, in violation of section 3161(c)(1) and the Sixth Amendment, in part by counsel's alleged failure adequately to challenge the continuance ordered, at the Government's request, for the competency examination.[18] (Motion at 16; Attachment at 39.)

         On the original indictment, the First Circuit noted on appeal: “Widi correctly asserts that the original indictment was outside [the Speedy Trial Act] limit by a week or so; although one or another possible exception may have applied.” Widi, 684 F.3d at 224-25 (footnote omitted). The Court held that Petitioner waived his right to challenge the original indictment because he did not do so before trial. Id.

         Regardless of whether Petitioner might have had a meritorious claim of a violation under section 3161(b), the Speedy Trial Act provides in part:

In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.

18 U.S.C. § 3162(a)(1). Because Petitioner's offense was serious, and because the approximately one-week delay between his arrest and the original indictment was relatively brief, Petitioner cannot demonstrate a reasonable probability that the original indictment would have been dismissed with prejudice pursuant to section 3162(a)(1), had counsel sought dismissal. The claim, therefore, fails both prongs of the Strickland test. 466 U.S. At 689, 694.

         Petitioner also asserts an ineffective assistance claim regarding the application of the Speedy Trial Act to the superseding indictment. (Motion at 14.) The First Circuit rejected the underlying argument on appeal. Widi, 684 F.3d at 225. “[S]ection 3161(b) is concerned with a timely original indictment and not superseding indictments . . . . While adding new facts or new counts can always raise issues of notice or delay in trial, these problems are dealt with by other rules and precedents.” Id. (citation omitted) (emphasis in original). Because the Court rejected the underlying argument, Petitioner's related ineffective assistance claim also fails. See Tse, 290 F.3d at 465.[19]

         Petitioner further alleges that counsel contravened Petitioner's express wishes when counsel waived Petitioner's Speedy Trial Act rights under section 3161(c)(1) in conjunction with motions to continue. (Motion at 16; Attachment, ECF No. 369-1 at 39-40.) Petitioner alleges that “[m]uch of the delay was attributable to Counsel's motion practice and multiple unnecessary continuances.” (Attachment at 39.)

         The record does not support Petitioner's contentions. Petitioner references a letter, dated December 28, 2009, to counsel regarding pre-trial motions to support his argument. (Attachment, ECF No. 369-1 at 41.) In the letter, Petitioner lists the motions he believes counsel should file, and states: “I have asserted my rights to a timely trial.” (Attachment, ECF No. 369-14 at 1-2.)

         Counsel responded by letter dated January 6, 2010:

I have not reviewed the docket record for information about the speedy trial clock. If you have some idea about how many days have passed that count towards the speedy trial period, and that the number of days exceeds 70, let me know. Keep in mind that every time the case is continued or an extension of time is granted, the speedy trial period is tolled.

         (Attachment, ECF No. 369-15 at 3.)

         By letter dated January 9, 2010, Petitioner informed counsel that he did not understand how to calculate the speedy trial clock time, and informed counsel he would need counsel's assistance. (Attachment, ECF No. 369-25 at 2.) Petitioner also requested that counsel raise a number of pre-trial issues, and Petitioner concludes the letter by requesting counsel file a motion to continue “so that we can have some time to regroup.” (Id. at 3.)

         On January 20, 2010, counsel filed an unopposed motion to continue a hearing scheduled for the following day on Petitioner's motion to suppress; in the motion to continue, counsel represented to the Court that Petitioner had asked counsel on January 20, i.e., the date on which counsel filed the motion to continue, to withdraw from representing Petitioner. (Motion, ECF No. 104.) The record thus reflects that Petitioner requested the continuance.[20]

         In short, a review of the record reveals that any delay in the trial due to the parties' requests for continuances was not the result of counsel's substandard performance. Petitioner has also failed to demonstrate prejudice. See United States v. Taylor, 487 U.S. 326, 343 (1988) (holding, in a case involving a trial delay under section 3162(a)(2), that the district court abused its discretion by granting dismissal with prejudice, noting, among other factors, the defendant's contribution to the delay by failing to appear for trial).[21]

         5. Franks (Ground 10)

         Petitioner alleges counsel was ineffective because counsel failed to challenge the lack of a hearing under Franks v. Delaware, 438 U.S. 154 (1978).[22] (Motion at 17.) He alleges the affidavit for the search warrant omitted material information, and he was wrongfully excluded from the proceedings on the affidavit. (Id.; Attachment, ECF No. 369-1 at 42-44.) He also alleges counsel's performance was substandard based on the failure to argue against the good faith exception under United States v. Leon, 468 U.S. 897 (1984), and the failure to argue totality of the circumstances under Illinois v. Gates, 462 U.S. 213 (1983). (Attachment at 46-47.)

         In his motion for new trial, Petitioner maintained he was entitled to a Franks hearing, based on a proffer that the agent who provided the search warrant affidavit failed to state that he could not corroborate reports of a smell of marijuana at Petitioner's residence, and failed to assert that a confidential informant had reported that Petitioner stole his motorcycle. (Motion, ECF No. 332 at 11-13.)

         On appeal, the First Circuit discussed and decided the issues presented by Leon and Gates. Widi, 684 F.3d at 221. This Court denied the motion for a new trial. (Order, ECF No. 341.) The First Circuit affirmed. (Widi, Nos. 13-2089, 13-2442 (1st Cir. Apr. 23, 2015).) The underlying Franks claim is therefore precluded from collateral review. See Singleton, 26 F.3d at 240. Because the claim fails on the merits, the related claim of ineffective assistance also fails.[23] See Tse, 290 F.3d at 465.

         6. Brady ...


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