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Swan v. United States

United States District Court, D. Maine

February 15, 2018

CAROLE SWAN, Petitioner


          John H. Rich, III United States Magistrate Judge.

         The petitioner, Carole Swan, has moved, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct her sentence. See Motion for Reduction (“Motion”) (ECF No. 462). In 2014, following two separate jury trials, the petitioner was convicted of three counts of Hobbs Act extortion, 18 U.S.C. § 1951(a), as well as five counts of tax fraud and two counts of making false statements to obtain federal employees' compensation. See Judgment (ECF No. 358) at 1; Jury Verdicts (ECF Nos. 167, 273). The court sentenced the petitioner to a total of 87 months in prison. See Judgment at 2. The petitioner appealed from the convictions on the basis that the court erred in denying a motion to suppress; the First Circuit affirmed. See United States v. Swan, 842 F.3d 28, 29 (1st Cir. 2016).

         In the petitioner's section 2255 motion, she seeks to vacate the extortion conviction. See Motion at [1]. The petitioner argues that she is entitled to relief based on the Supreme Court's interpretation, in McDonnell v. United States, ___ U.S. ___, 136 S.Ct. 2355 (2016), of the term “official act” under 18 U.S.C. § 201(a)(3). See Id. The petitioner also argues that there is insufficient evidence to support the extortion conviction. See Id. at [3]-[4].

         Following a review of the Motion and the government's request for summary dismissal, I recommend that the court grant the government's request, deny relief, and dismiss the Motion.

         I. Factual Background and Procedural History

         The superseding indictment alleged, among other things, that the petitioner,

a selectman and assessor for the Town of Chelsea, Maine, who had decision-making responsibility for awarding and paying for services contracted by Chelsea, did knowingly obstruct, delay, and affect and attempt to obstruct, delay, and affect in any way and degree commerce and the movement of articles and commodities in commerce by extortion, as those terms are defined in 18 U.S.C. § 1951; that is, defendant obtained and sought to obtain the Property identified below, not due her or her office, from Frank Monroe Construction, with its consent, under color of official right . . . .

         Superseding Indictment (ECF No. 112) at 1. Counts 1 through 3 of the superseding indictment each alleged a date on which a Hobbs Act crime occurred and a dollar amount involved. See id. Count 1 was on or about January 25, 2010, in the amount of $3, 000; Count 2 was on or about December 3, 2010, in the amount of $7, 000; and Count 3 was on or about February 3, 2011, in the amount of $10, 000. See Id. In September 2013, the jury found the petitioner guilty of Counts 1 through 3.[1] See Jury Verdict (ECF No. 273).

         The petitioner appealed from the convictions on the basis that the court erred in denying a motion to suppress, and the First Circuit affirmed. See Swan, 842 F.3d at 29.

         The petitioner initially filed her section 2255 motion on April 20, 2017, characterizing it as a motion for relief pursuant to 18 U.S.C. § 3582. See Motion for Reduction (ECF No. 445) at [1]. The government argued that the motion should be construed as a request for relief under 28 U.S.C. § 2255. See Government's Supplemental Response in Opposition (“Response”) (ECF No. 456) at 13. The court agreed with the government and issued an pursuant to Castro v. United States, 540 U.S. 375 (2003), advising the petitioner that the motion would be construed as a section 2255 motion, “and therefore the rules against second or successive motions will apply to any future motions under 28 U.S.C. § 2255.” See Castro Order (ECF No. 460) at 1. The court gave the petitioner the opportunity to withdraw or amend the motion. See id.

         The petitioner informed the court that she chose not to withdraw or amend the motion. See Petitioner's Response to Castro Order (ECF No. 461) at 1. The petitioner's initial filing (ECF No. 445) was then docketed at ECF No. 462 as a section 2255 motion. See Motion.

         The government requests a summary dismissal. See Government's Response in Opposition (ECF No. 467) (relying on ECF Nos. 450, 456).

         II. Applicable 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 also, e.g., Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994). The burden is on the section 2255 petitioner to establish that he or she is entitled to section 2255 relief. See, e.g., David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).

         A collateral challenge is not a substitute for an appeal. See, e.g., United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). A claim that is not raised on appeal is procedurally defaulted. See, e.g., Bousley v. United States, 523 U.S. 614, 621 (1998). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice, ' or that he is ‘actually innocent.'” Id. at 622 (quoting Murray v. Carrier, 477 U.S. 478, 485, 496 (1986)). Procedural default is an affirmative defense. See, e.g., Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010).

         III. Discussion

         A. Timeliness

         The government appropriately concedes that all claims in the petitioner's motion are timely under 28 U.S.C. § 2255(f)(1).[2] See Response at 13-14 n.2.

         B. The McDonnell Claim

         1. The Supreme Court's Decision in McDonnell

         The petitioner's motion is based in part on McDonnell, in which the issue, on direct appeal followed by a grant of certiorari, was “the proper interpretation of the term ‘official act'” under 18 U.S.C. § 201(a)(3).[3] McDonnell, 136 S.Ct. at 2367. In McDonnell, the Court noted it had previously construed Hobbs Act extortion “to include ‘taking a bribe.'” Id. at 2365 (quoting Evans v. United States, 504 U.S. 255, 260, 269 (1992)). The Court described the relevant jury instructions:

The [district] court described the five alleged “official acts” set forth in the indictment, which involved arranging meetings, hosting events, and contacting other government officials. The court then quoted the statutory definition of “official act, ” and - as the Government had requested - advised the jury that the term encompassed “acts that a public official customarily performs, ” including acts “in ...

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