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Poulin v. United States

United States District Court, D. Maine

October 31, 2017

DANIEL POULIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AFFIRMING RECOMMENDED DECISION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         After clarifying the circumstances surrounding certain sealed docket entries, the Court affirms the Magistrate Judge's recommended decision, transfers a prisoner's motion under 28 U.S.C. § 2255 pursuant to 28 U.S.C. § 1631 and First Circuit Rule 22.1(e), and denies any certificate of appealability.

         I. BACKGROUND

         On September 14, 2009, this Court held a bench trial and issued a verdict finding Daniel Poulin guilty as charged of violating 18 U.S.C. § 2251(a), which prohibits the production of child pornography. Min. Entry (ECF No. 184). On January 27, 2010, the Court imposed on Mr. Poulin the mandatory minimum sentence of 180 months. J. (ECF No. 190); 18 U.S.C. § 2251(e). On January 28, 2010, Mr. Poulin appealed his conviction on two grounds: (1) that § 2251(a) was unconstitutional as applied to him because his conduct was purely personal and did not have a substantial effect on interstate commerce; and (2) that the Government's evidence was insufficient to sustain a conviction because the Government failed to show that he “produced” sexually explicit images that traveled interstate. United States v. Poulin, 631 F.3d 17 (1st Cir. 2011); Opinion of Ct. of Appeals for the First Circuit at 1-2 (ECF No. 209). On January 7, 2011, the First Circuit Court of Appeals affirmed his conviction, J. of Ct. of Appeals for the First Circuit (ECF No. 210), and on January 28, 2011, the First Circuit issued its mandate. Mandate of Ct. of Appeals for the First Circuit (ECF No. 216).

         On April 6, 2012, Mr. Poulin filed an extensive motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Fed. Custody (ECF No. 224). On April 16, 2013, the Magistrate Judge issued a recommended decision, recommending that the Court dismiss the petition. Recommended Decision at 29-30 (ECF No. 288). Mr. Poulin objected to the recommended decision on May 18, 2013. Obj. to the Magistrate's Recommended Decision (ECF No. 291). On January 15, 2014, this Court affirmed the recommended decision. Order on Mot. Under 28 U.S.C. § 2255 at 17 (ECF No. 293); Am. Order on Mot. Under 28 U.S.C. § 2255 (ECF No. 295). On February 18, 2014, Mr. Poulin moved for reconsideration. Pet'r's Mot. for Recons. (ECF No. 296). On April 24, 2014, this Court denied Mr. Poulin's motion for reconsideration. Order on Mot. for Recons. (ECF No. 310).

         On May 1, 2015, Mr. Poulin filed a motion for relief pursuant to Rule 60(b). Mot. Pursuant to Civil Rule 60(b) (ECF No. 314). On October 19, 2015, the Magistrate Judge issued a recommended decision, recommending that the Court dismiss Mr. Poulin's petition as a second or successive motion under 18 U.S.C. § 2255. Recommended Decision on Rule 60(b) Mot. (ECF No. 332). On November 6, 2015, Mr. Poulin objected to the recommended decision. Obj. to Recommended Decision (ECF No. 333). On January 29, 2016, the Court affirmed the Magistrate Judge's recommended decision. Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 336).

         On February 29, 2016, Mr. Poulin filed a motion for reconsideration of the order affirming the Magistrate Judge's recommended decision. Rule 60(b) Mot. for Recons. (ECF No. 337). The Government responded to Mr. Poulin's motion for reconsideration on March 31, 2016. Gov't's Resp. to Pet'r's Rule 59(e) and Rule 60(b) Mots. for Recons. (ECF No. 342). Mr. Poulin replied on April 19, 2016. Reply to Gov't's Resp. to Rule 59(e) Mot. to Reconsider (ECF No. 344). On July 19, 2016, the Court issued an order, denying Mr. Poulin's motion for reconsideration. Order on Mot. for Recons. of Order on Mot. Pursuant to Fed. R. of Civ. P. 60(b) (ECF No. 347). On August 8, 2016, Mr. Poulin filed a notice of appeal to the Court of Appeals for the First Circuit. Notice of Appeal (ECF No. 348).

         Meanwhile, Mr. Poulin filed a motion for recusal, demanding that this Judge recuse himself from any further proceedings on this case. Mot. for Recusal (ECF No. 339). The Court denied the motion for recusal on July 19, 2016. Order on Mot. to Recuse (ECF No. 346). When he appealed the denial of the motion for reconsideration, Mr. Poulin also appealed the recusal order. Notice of Appeal (ECF No. 348).

         On October 27, 2017, the First Circuit Court of Appeals characterized Mr. Poulin's appeal as an application for a certificate of appealability and rejected it. J. of Ct. of Appeals for the First Circuit (ECF No. 362). It also rejected his appeal of the denial of his motion to recuse. Id.

         On August 14, 2017, Mr. Poulin filed a motion and supporting memorandum for a second in time under § 2255. Supporting Mem. for a Second in Time Mot. Under § 2255(f)(4) (ECF No. 353) (Pet'r's Mot.). On September 7, 2017, the Magistrate Judge issued a recommended decision in which he recommended that the motion be transferred to the Court of Appeals for the First Circuit pursuant to 28 U.S.C. § 1631 and First Circuit Rule 22.1(e). Recommended Decision on 28 U.S.C. § 2255 Mot. at 3 (ECF No. 360) (Rec. Dec.). The Magistrate Judge also recommended that the Court deny a certificate of appealability because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).[1] Id. at 3-4.

         II. DANIEL POULIN'S OBJECTION

         On September 25, 2017, Mr. Poulin objected to the recommended decision. Objs. to the Magistrate's Recommended Decision (ECF No. 361). Mr. Poulin says that his § 2255 motion is not subject to the bar against second or successive § 2255 motions because he filed his motion under § 2255(f)(4) based on a claim of newly-discovered evidence. Id. at 3. The so-called newly-discovered evidence is “(1) that there were secreted ex parte proceedings conducted against Movant while litigation was pending, and (2) the Court, or someone the Court is directly responsible for, concealed the sealed and ex parte proceedings from Movant and the First Circuit Court of Appeals.” Id.

         To understand Mr. Poulin's reference to secret, sealed, ex parte proceedings, it is necessary to return to his August 14, 2017 motion. Mr. Poulin noticed that four entries in his docket were sealed. Pet'r's Mot. at 7-9 (citing ECF Nos. 286-87, 292, 294). Mr. Poulin assumes the worst about these sealed entries. Id. at 7 (“Judge Woodcock was involved in secret EX PARTE communications with an unknown entity or third party”).

         III. ...


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