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Stile v. United States

United States District Court, D. Maine

October 6, 2017

JAMES STILE, 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 James Stile moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 637.) Following a guilty plea, Petitioner was convicted in May 2015 of robbery of controlled substances from a pharmacy by use of a dangerous weapon, 18 U.S.C. § 2118(a), (c)(1); the Court sentenced Petitioner to 120 months in prison. (Judgment, ECF No. 579 at 1-2.) The First Circuit affirmed the sentence on appeal. United States v. Stile, 845 F.3d 425 (1st Cir. 2017).

         In support of his section 2255 motion, Petitioner contends counsel was ineffective at sentencing because counsel failed to move for a downward departure, failed to advise Petitioner properly regarding a weapons enhancement, and failed to offer certain evidence relevant to an enhancement for obstruction of justice. (Motion (Ground One) at 4.) Petitioner also contends the Court erred when it applied the obstruction of justice sentencing enhancement, when it denied a reduction for acceptance of responsibility, and when it failed to consider Petitioner's contention that a doctor was responsible for Petitioner's addiction. (Motion (Ground Two) at 5.) Finally, Petitioner alleges prosecutorial misconduct based on the placement of an informant in Petitioner's cell. (Motion (Ground Three) at 7.) The Government requests dismissal of the motion. (Response, ECF No. 648 at 1.)

         Following a review of the record, 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

         In 2011, Petitioner was charged with the robbery of a pharmacy by use of a dangerous weapon. He initially pled not guilty to the charge; after several preliminary proceedings and a suppression hearing, Petitioner pled guilty. Stile, 845 F.3d at 427. At sentencing, the Court calculated the guidelines range to be 108 to 135 months of imprisonment, based on a total offense level of 31 and a criminal history category of I. Id.

         Petitioner argued on appeal that there were procedural errors at sentencing related to the enhancement for obstruction of justice for perjury, the denial of a reduction for acceptance of responsibility, and the failure to give adequate weight to Petitioner's drug addiction. Id. at 427-28. In addition, Petitioner included a “catchall argument” that the sentence was substantively unreasonable. Id. at 428.

         Petitioner asserts that he signed his section 2255 motion on April 24, 2017. (Motion at 13.)[1] The motion was filed within one year of the date on which the judgment became final, and it is undisputed that the motion was filed timely.[2] (Id. at 1.)

         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 section 2255 petitioner to 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). 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).

         “[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); Elwell v. United States, 95 F.3d 1146 (1st Cir. 1996 (per curiam) (unpublished) (citing Davis v. United States, 417 U.S. 333, 342 (1974)) (holding that a petitioner “is not entitled on collateral review to relitigate issues raised on direct appeal, absent an intervening change in the law”).

         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 (1st Cir. 2002). “Accordingly, a defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence.” Berthoff, 308 F.3d at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010). An allegation of ineffective assistance of counsel can excuse a procedural default. Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).

         In Strickland, 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.” 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). That an argument advanced by counsel failed to persuade the Court does not in itself render counsel's performance substandard. See Strickland, 466 U.S. at 699 (concluding that “there can be little question, even without application of the presumption of adequate performance, that trial counsel's defense, though unsuccessful, was the result of reasonable professional judgment”).

         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).

         B. Claims and Analysis

         1. Claim regarding counsel's failure to move for a downward departure

         Petitioner alleges ineffective assistance citing counsel's failure to move for a downward departure under USSG § 5K2.0 based on Petitioner's argument that he was subjected to torture and substandard conditions while he was in pretrial detention at various county jails.[3] (Motion at 4; Attachment, ECF No. 637-1 at 15-16.) Specifically, Petitioner alleges that in the Somerset County Jail, he was subjected to electric shocks four to twelve times daily, he was kicked and beaten, and he was held in solitary confinement.[4](Attachment at 15.) Petitioner alleges he was injured while at the Cumberland County Jail. (Attachments, ECF Nos. 637-1 at 16, 637-4 (photo labeled “Exhibit B-Cumberland County Jail Photo of Petitioner's Injuries”).) Petitioner asserts that at the Strafford County Jail in New Hampshire, he received inadequate medical treatment after a spinal injury caused by an assault by another prisoner, and that he received inadequate treatment for a dental condition.[5] (Attachment, ECF No. 637-1 at 17.)

         Petitioner contends the substance of the allegations about his pretrial conditions of confinement was before the Court at sentencing, in the form of a “Microsoft Powerpoint” presentation.[6] (Attachment, ECF No. 637-1 at 20-21; Reply, ECF No. 662 at 23-25, 30.) Petitioner alleges counsel was aware of video recordings from which the Powerpoint presentation was made, and he alleges counsel should have filed a motion on the basis of the information contained in the presentation. (Attachment at 20-21.) Petitioner also asserts the photograph attached to the section 2255 motion was before the Court at sentencing. (Reply at 25; Attachment, ECF No. 637-4.) Petitioner alleges he was subjected to oppressive and harsh conditions for approximately four years before he was sentenced.[7] He also asserts appellate counsel was ineffective for failing to include an argument regarding the issue of Petitioner's conditions of confinement. (Reply at 23.) The Government argues the claim is procedurally defaulted, and Petitioner cannot demonstrate either substandard performance or prejudice. (Response at 17-20.)

         Whether a court grants a downward departure is generally a matter of discretion:

[A] federal court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the [United States Sentencing Commission] has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is no-as it will be most of the time-the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline.

Koon v. United States, 518 U.S. 81, 109 (1996). In Koon, the Supreme Court noted that such departures would be “‘highly infrequent'”. Id. at 96 (quoting 1995 USSG Ch. 1, Pt. A, p.6).[8] See also United States v. De Jesús, 223 F. App'x 7, 8 (1st Cir. 2007) (unpublished) (“A sentencing court's denial of a downward departure is discretionary and unreviewable unless the court refuses the request based on a view that it lacks legal authority to consider a departure or . . . base[d] . . . on an error of law.”) (quotation marks omitted).

         The sentencing guidelines do not proscribe a downward departure for pretrial conditions of confinement. In 2001, however, the First Circuit noted:

[T]his court has never before held that conditions of confinement constitute a permissible basis for downward departure. Although some district courts have granted a downward departure on that basis, “no clear consensus exists as to the propriety of granting a downward departure for conditions of pretrial confinement.”

United States v. Ortiz, 6 F. App'x 46, 48 (1st Cir. 2001) (per curiam) (unpublished) (quoting United States v. Francis, 129 F.Supp.2d 612, 615 (S.D.N.Y. 2001) (collecting cases)) (affirming conviction and sentence on direct appeal, and denying without prejudice an ineffective assistance claim included in a pro se supplemental brief);[9] United States v. Thurmond, 341 F. App'x 214, 216 (7th Cir. 2009) (unpublished) (“[W]e have yet to decide whether even extremely harsh conditions of confinement can justify a reduced sentence. And this appeal would not provide an opportunity to decide that question because the district court did not think that the conditions Thurmond complained about were harsh at all.”) (citations omitted); but see United States v. Pressley, 345 F.3d 1205, 1218 (11th Cir. 2003) (“The district court was correct in holding that conditions of confinement could provide a basis for departure, since this factor was apparently not taken into account by the Sentencing Commission and could be unusual enough to take a case out of the heartland of the applicable guideline.”); United States v. Rodriguez, 213 F.Supp.2d 1298, 1303 (M.D. Ala. 2002) (holding that the rape of the defendant by a prison guard prior to the defendant's sentencing constituted “a highly unusual” presentence confinement condition that warranted a two-level downward departure under USSG § 5K2.0), and supplemental opinion, 214 F.Supp.2d 1239 (M.D. Ala. 2002) (increasing the downward departure to three levels).

         Given that in Ortiz, the First Circuit acknowledged that it had never held that conditions of confinement can be a basis for a downward departure, given that if recognized, any such departure would be “highly infrequent, ” and given the deference afforded a trial court upon review of a decision as to whether to permit a downward departure, De Jesús, 223 F. App'x at 8, Petitioner cannot establish the necessary substandard performance by sentencing counsel based on the failure to move for a downward departure, or by appellate counsel based on the failure to raise the issue on appeal. In addition, Petitioner could not demonstrate prejudice given that Court was aware of the alleged conditions of Petitioner's pretrial detention, [10] and the question of whether to grant a downward departure was within the Court's discretion. See Strickland, 466 U.S. at 697; De Jesús, 223 F. App'x at 8; McGill, 11 F.3d at 225.

         2. Claim regarding the firearms enhancement

         Petitioner alleges ineffective assistance based on counsel's alleged advice that Petitioner concede a five-level increase in the offense level under USSG § 2B3.1(b)(2)(C), for a firearms-related specific offense characteristic. (Attachment, ECF No. 637-1 at 22.) Petitioner asserts “[w]hat was appropriate was a (3) three point enhancement pursuant to §2B3.1(b)(2)(E).”[11] (Id. at 23.) Petitioner also contends that the application of both the firearms enhancement and the enhanced statutory penalty under 18 U.S.C. § 2118(c)(1), constitutes an impermissible double-counting. (Id. at 28-29.)

         The claim fails, in part because sentencing counsel did argue for a three-level enhancement, rather than a five-level enhancement, under USSG § 2B3.1. The revised presentence investigation report contains the following as Petitioner's objection to paragraph 22 of the report:

Paragraphs 6 and 22: Offense Conduct and Specific Offense Characteristic: The defendant objects to ¶¶6 and 22 because the alleged firearms were never recovered by the police. For that reason, he believes there is insufficient evidence to warrant a conclusion that the objects he possessed during the robbery were firearms. He notes that a firearm, by definition, means a weapon that is designed to expel a projectile. He argues it is more appropriate to consider the items dangerous weapons, which is defined as an object that is not capable of inflicting death or serious bodily injury, but closely resembles such an instrument or is used by a defendant in such a manner to create the impression that the object was such an instrument (see USSG §1B1.1, comment. (n.1[D])}. Accordingly, the defendant contends that he should only be subject to a three-level enhancement in ¶22, instead of a five-level increase.

         The objection was preserved at sentencing, and the Court noted that it had reviewed the contents of the presentence investigation report.[12] (Sentencing Tr., ECF No. 610 at 186.) See United States v. Quiñones-Otero, No. 16-2454, ___ F.3d ___, ___, 2017 WL 3700794, at *2, 2017 U.S. App. Lexis 16446, at *3-4 (1st Cir. Aug. 28, 2017) (noting that the appellant failed to preserve an objection because he failed to object either at sentencing or in the presentence investigation report). That the objection did not persuade the Court does not render ...


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