United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
action, Petitioner Garry Collins moves, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside or correct his sentence.
(Motion, ECF No. 133.) Following a guilty plea, Petitioner
was convicted of possession with intent to distribute 28
grams or more of cocaine base, 21 U.S.C. § 841(a)(1),
(b)(1)(B). (Judgment, ECF No. 117 at 1.) The Court concluded
Petitioner was a career offender and sentenced him to a term
of 200 months in prison, to be followed by a term of eight
years of supervised release. (Id. at 2-3; Sentencing
Tr., ECF No. 126 at 16-18.)
claims ineffective assistance based on counsel's alleged
failure to persuade the Government to follow a Department of
Justice policy memorandum; Petitioner contends that had the
Government acted in accordance with the policy memorandum,
the Government would not have filed an information charging a
prior state court drug conviction, pursuant to 21 U.S.C.
§ 851, and consequently, Petitioner would not have been
subject to a career offender sentencing enhancement. (Motion
at 4, 18; Information, ECF No. 87; Policy Memorandum, ECF No.
a review of the record and after consideration 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.
Background Facts and Procedural History
written plea agreement, Petitioner agreed to affirm a prior
state court conviction, set forth in an information filed
pursuant to 21 U.S.C. § 851, of aggravated trafficking
in scheduled drugs. (Plea Agreement, ECF No. 103 at 1-2.)
Consistent with the plea agreement, Petitioner affirmed the
prior aggravated trafficking conviction at sentencing.
(Sentencing Tr. at 4-5.) The Court accepted the plea
agreement, and recognized Petitioner was subject to a
mandatory ten-year minimum prison term, pursuant to 21 U.S.C.
§ 841(b)(1)(B). (Id. at 28; Presentence Conf.
Tr., ECF No. 125 at 4-5.) The Court sentenced Petitioner as a
career offender, pursuant to USSG § 4B1.1, based on two
prior convictions: (1) the uncontested prior drug conviction
alleged in the section 851 information; and (2) a conviction,
of criminal threatening with a dangerous weapon, that
Petitioner unsuccessfully argued was not a “crime of
violence” under USSG § 4B1.2.(Sentencing Tr. at
First Circuit upheld the conviction and sentence on appeal,
United States v. Collins, 811 F.3d 63 (1st Cir.
2016), and in May 2016, the Supreme Court denied certiorari,
Collins v. United States, 136 S.Ct. 2397 (2016).
placed his section 2255 motion in the prison mailing system
in January 2017.
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). The burden is on the petitioner to
establish that he is entitled to section 2255 relief.
David v. United States, 134 F.3d 470, 474 (1st Cir.
Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court set forth the federal constitutional standard
by which claims of ineffective assistance 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. The Court presumes “that
counsel has ‘rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment.'” Companonio v.
O'Brien, 672 F.3d 101, 110 (1st Cir. 2012) (quoting
Strickland, 466 U.S. at 690).
Claim of Ineffective Assistance Regarding Policy
United States v. LaBonte, 520 U.S. 751, 761-62
(1997), the Supreme Court addressed the issue of
prosecutorial discretion as part of its analysis regarding
the United States ...