United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
H. Rich, III United States Magistrate Judge.
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).
petitioner's section 2255 motion, she seeks to vacate the
extortion conviction. See Motion at . 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 -.
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
Factual Background and Procedural History
superseding indictment alleged, among other things, that the
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 . . . .
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. See Jury Verdict (ECF No. 273).
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.
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 . 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.
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.
government requests a summary dismissal. See
Government's Response in Opposition (ECF No. 467)
(relying on ECF Nos. 450, 456).
Applicable Legal Standards
person may move to vacate his or her sentence on one of four
(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).
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).
government appropriately concedes that all claims in the
petitioner's motion are timely under 28 U.S.C. §
2255(f)(1). See Response at 13-14 n.2.
The McDonnell Claim
The Supreme Court's Decision in
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). 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
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