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D'Angelo v. United States

United States District Court, D. Maine

October 31, 2017

MICHEL D'ANGELO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          John C. Nivison, Magistrate Judge.

         In this action, Petitioner Michel D'Angelo moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF Nos. 198, 202.) He also moves to amend his section 2255 motion. (Motion to Amend, ECF No. 261.)

         Following a guilty plea, Petitioner was convicted of bank robbery, 18 U.S.C. §§ 2, 2113(a); the Court sentenced Petitioner to a below-guidelines term of 180 months in prison, to be followed by three years of supervised release. (Judgment, ECF No. 136 at 1-3; Statement of Reasons, ECF No. 137 at 3.) Petitioner appealed from the sentence, particularly, the denial of credit for acceptance of responsibility. The First Circuit affirmed. United States v. D'Angelo, 802 F.3d 205 (1st Cir. 2015).

         Petitioner asserts the following grounds for his section 2255 motion: Petitioner asserts a claim under Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), although he may have intended to withdraw the claim (Reply, ECF No. 255 at 2, in support of a motion to amend (ECF No. 237) and motion to stay (ECF No. 238)); he alleges ineffective assistance regarding his career offender status (Motion, ECF No. 202 at 16; Attachment, ECF No. 261-1 at 6-7); he alleges ineffective assistance regarding a sentencing enhancement for possession of a weapon (Motion at 12); he alleges ineffective assistance based on counsel's failure to present sufficient evidence of Petitioner's mental health issues to warrant a greater downward departure than the Court granted (Id. at 7); and he alleges counsel failed to move to withdraw after Petitioner requested he do so (Attachment at 7). The Government requests summary dismissal of Petitioner's section 2255 motion. (Response, ECF No. 270 at 1.)

         Following a review of Petitioner's motion to amend (ECF No. 261), Petitioner's section 2255 motion (ECF Nos. 198, 202), and the Government's request for dismissal, I recommend that the Court grant Petitioner's motion to amend, and that the Court grant the Government's request and dismiss Petitioner's section 2255 motion.

         I. Factual Background and Procedural History

         At sentencing, the Court calculated the guidelines range as follows: The base offense level was 20, pursuant to USSG § 2B3.1(a). (Sentencing Tr., ECF No. 143 at 36.) The offense level was adjusted to 29 based on the following enhancements: two levels, pursuant to USSG § 2B3.1(b)(1), because Petitioner took the property of a bank; three levels, pursuant to USSG § 2B3.1(b)(2)(E), for possession of a dangerous weapon; two levels, pursuant to USSG § 3B1.1(c), for Petitioner's role in the offense; and two levels, pursuant to USSG § 3C1.1, for obstruction of justice. (Id.)

         Petitioner's status as a career offender raised the total offense level to 32, pursuant to USSG § 4B1.1(b)(3). (Id.) Petitioner's career offender status was based on two Maine state court convictions set forth in the revised presentence investigation report: a 2002 conviction for burglary and criminal threatening with a dangerous weapon, and a 2007 conviction for assault on an officer. (Id. at 4-6, 36-37.)

         The Court determined the criminal history to be category VI because Petitioner was a career offender. (Id. at 37.) The Court concluded that, based on a total offense level of 32 and a criminal history category of VI, the guidelines range was from 210 to 262 months, but due to the statutory maximum of 20 years, pursuant to 18 U.S.C. § 2113(a), the guidelines range was capped at 240 months. (Id.) Petitioner, through counsel, requested a prison term of 144 months. (Id. at 46.)

         The Court considered Petitioner's mental health issues as it addressed the sentencing factors under 18 U.S.C. § 3553(a). (Sentencing Tr. at 22, 53-56.) The sentence of 180 months represented a downward departure from the guidelines range; the Court based the downward departure on Petitioner's mental health history and his decision to plead guilty. (Id. at 57-58.)

         On appeal, Petitioner challenged the denial of credit for acceptance of responsibility. D'Angelo, 802 F.3d at 206. The First Circuit concluded, in an October 2015 decision, that “the district court did not commit any error, much less clear error” when it denied a reduction for acceptance of responsibility. Id. at 211.

         In June 2016, Petitioner filed the Johnson claim.[1] (Motion, ECF No. 193). In July 2016, Petitioner filed a section 2255 motion with additional claims.[2]

         (Motion, ECF No. 202.) In May 2017, Petitioner filed a motion to amend, which set forth additional allegations.[3] (Motion to Amend, ECF No. 261; Attachment, ECF No. 261-1.)

         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 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); United States v. Isom, 85 F.3d 831, 838 (1st Cir. 1996) (applying McGill to a case involving a guilty plea).

         “[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.

         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) (per curiam).

         Summary dismissal of a motion is permitted when the allegations are “‘vague, conclusory, or palpably incredible, '” even “‘if the record does not conclusively and expressly belie [the] claim.'” David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).

         B. Claims and Analysis

         1. Johnson claim

         In Johnson, the Supreme Court held the “residual” clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B) to be unconstitutionally vague.[4] Johnson, 135 S.Ct. at 2557. Petitioner might have intended to waive the Johnson claim (ECF No. 255 at 2), but to the extent he did not, the claim nonetheless would fail on the merits, because in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886 (2017), the Supreme Court held that Johnson does not apply to career offender sentences:

At the time of petitioner's sentencing, the advisory Sentencing Guidelines included a residual clause defining a ‘crime of violence' as an offense that ‘involves conduct that presents a serious potential risk of physical injury to another.' This Court held in [Johnson] that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. ยง 924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines' residual clause is also void for vagueness. Because we ...

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