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Collins v. United States

United States District Court, D. Maine

September 12, 2017

GARRY COLLINS, 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 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.)

         Petitioner 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. 133-3.)

         Following 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.

         I. Background Facts and Procedural History

         In the 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.[1](Sentencing Tr. at 16-17, 20.)

         The 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).

         Petitioner placed his section 2255 motion in the prison mailing system in January 2017.[2]

         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). 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. 1998).

         In 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).

         B. Claim of Ineffective Assistance Regarding Policy Memorandum

         In 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 ...


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