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Barnes v. United States

United States District Court, D. Maine

March 22, 2018

MICHAEL BARNES, 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 Michael Barnes moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 194.) Following a guilty plea, Petitioner was convicted in July 2013 of several charges involving conspiracy to possess, possession, and use, of multiple counterfeit access devices (in this case, credit cards); the Court sentenced Petitioner to 36 months in prison, to be followed by a three-year period of supervised release.[1] (Judgment, ECF No. 170 at 1-2.) Petitioner did not appeal from the judgment.

         Petitioner contends that at sentencing, the Government incorrectly alleged that Petitioner's criminal history included a conviction for firearms transport and multiple violations for driving with a suspended license. (Motion at 2.) Petitioner alleges counsel failed to correct the record. (Id. at 3.) Petitioner contends he was prejudiced because his attempt to correct the record in his allocution led the Court to conclude he was “full of excuses;” he contends the sentencing guidelines range was greater than it should have been, due to the alleged error by the Government and ineffective assistance by counsel. (Motion at 2-4; Reply, ECF No. 204 at 4.) He requests the sentence be either vacated or reduced by six or more months. (Motion at 3-4.)

         Petitioner acknowledges his section 2255 motion was not filed within the one-year limitation period under section 2255(f). Petitioner, however, contends that he was in state custody in New York for 77 months prior to a May 2017 transfer to federal custody, and he had “limited access to federal law, rules and regulations” while he was in state custody. (Id. at 4-5.) He also asserts that he was unaware of the relevant law during the period when he could have timely filed a section 2255 motion, that he could not afford a lawyer, and that his trial counsel did not assist him. (Id. at 5.)

         The Government contends the section 2255 motion should be dismissed as time-barred, and it requests leave to address the merits if the Court does not dismiss the motion as untimely. (Response, ECF No. 202 at 1 & n.1.)

         Following a review of Petitioner's motion and the Government's request for dismissal, I recommend that the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         Petitioner was convicted of conspiracy to possess 15 or more counterfeit access devices, 18 U.S.C. §§ 371 and 1029(a)(3), (b)(2), and (c)(1)(A)(i) (Count 1); possession of 15 or more counterfeit access devices, 18 U.S.C. §§ 1029(a)(3) and (c)(1)(A)(i) (Count 2); and use of one or more counterfeit access devices, 18 U.S.C. §§ 1029(a)(1) and (c)(1)(A)(i) (Counts 3-5). (Judgment at 1.)

         The Court sentenced Petitioner to a prison term of 36 months on each of the counts, with the sentences to run concurrently with one another and consecutively to the sentences on two state court convictions (Docket Nos. 02780-2009 and 05427-2009);[2] Petitioner's 36-month prison term is to be followed by concurrent terms of three years of supervised release on all counts. (Judgment at 2-3.)

         The 36-month prison term was six months above the guidelines range of 24 to 30 months. (Judgment at 2; Statement of Reasons, ECF No. 171 at 1-2.) In its analysis of the reasons for the above-guidelines sentence, the Court noted that it had reviewed the revised presentence investigation report, and it adopted the revised report without change. (Sentencing Tr. (Excerpt), ECF No. 193 at 2-3; Statement of Reasons at 1.) In its discussion of the sentencing factors under 18 U.S.C. § 3553(a), the Court observed that Petitioner

seems to have an excuse for everything. I noted particularly that during the period of time he was on supervised release or on bail for the first federal offense he committed numerous violations, and in fact this offense was committed while he was on bail for another offense.

(Sentencing Tr. at 3.) The Court also noted Petitioner's criminal history involved multiple firearms offenses.[3] (Id.)

         II. Discussion

         The motion was not filed timely under any of the provisions of section 2255(f).[4]Specifically, Petitioner did not satisfy the requirements of subsection 2255(f)(1) because he filed the motion more ...


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