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Stile v. United States

United States District Court, D. Maine

April 10, 2018

JAMES STILE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE ON 28 U.S.C. § 2255 MOTION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE .

         Having viewed videotapes of various incidents during the defendant's incarceration, the Court rejects the defendant's contention that his defense counsel should have moved for a downward departure under United States Sentencing Guideline § 5K2.0 based on the conditions of the defendant's confinement. Based on its review of the record, the Court concludes that defense counsel's decision not to raise the defendant's conditions of presentence confinement to argue for a lower sentence did not render counsel's performance below an objective standard of reasonableness.

         I. PROCEDURAL BACKGROUND

         On April 28, 2017, James Stile filed a motion to vacate, set aside, or correct his sentence pursuant to 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. 637) (Stile Mot.). On May 1, 2017, the Magistrate Judge ordered the United States to respond to the motion. Order to Ans. (ECF No. 640). On July 21, 2017, the United States filed its response. Mot. for Summ. Dismissal of “Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sent. By a Person in Fed. Custody” (ECF No. 648) (Gov't Opp'n). On August 25, 2017, Mr. Stile filed a reply. Pet'r's Reply to Respondent's Resp. to Pet'r's Mot. to Vacate, Set Aside or Correct Sent. Pursuant to Title 28 U.S.C. § 2255 (ECF No. 662) (Stile Reply). On the same day, the Court referred Mr. Stile's motion to the Magistrate Judge for a recommended decision.

         On October 6, 2017, the Magistrate Judge issued a recommended decision in which he recommended that the Court decline to order an evidentiary hearing, deny Mr. Stile's motion for writ of habeas corpus, and deny a certificate of appealability. Recommended Decision on 28 U.S.C. § 2255 Mot. at 22 (ECF No. 669) (Recommended Decision). The Recommended Decision notified Mr. Stile that if he wished to object to the motion, he must do so within fourteen days of being served a copy of the Recommended Decision. Id. The docket indicated that Mr. Stile must file an objection by October 20, 2017.

         On October 23, 2017, Mr. Stile moved for an extension of time within which to file an objection to the Recommended Decision. Mot. for Extension of Time Within Which to File Obj. to Magistrate's Recommendation and Report Dec. ECF No. 669 (ECF No. 672). Mr. Stile requested sixty days to file an objection. Id. On October 24, 2017, the Court granted Mr. Stile's motion for extension in part and denied it in part. Order (ECF No. 673). The Court allowed Mr. Stile an additional thirty, not sixty days, to file any objection to the Recommended Decision, making Mr. Stile's objection due by November 27, 2017. Id.

         Mr. Stile failed to file an objection to the Recommended Decision by that date and, tugging on the deadline to make certain that the mailbox rule is complied with, the Court waited until December 7, 2017 to see if Mr. Stile was going to file an objection to the Recommended Decision. As ten days passed since Mr. Stile was required to place his objection in the prison mail system, the Court concluded that Mr. Stile failed to make a timely objection to the Magistrate Judge's October 6, 2017 Recommended Decision. On December 8, 2017, however, Mr. Stile filed his objections to the Recommended Decision, Pet'r's Opp'n to Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 682) (Stile Obj.), and therefore on December 18, 2017, the Court vacated its affirmance. Order Vacating Order Affirming the Recommended Decision of the Magistrate Judge on 28 U.S.C. § 2255 Mot. (ECF No. 683). On December 20, 2017, the Government filed its response to Mr. Stile's objection to the Recommended Decision. Resp. of the United States to Pet'r's Opp'n to Recommended Decision Denying Mot. Under 28 U.S.C. § 2255 (ECF No. 684) (Gov't's Resp.). On February 13, 2018, Mr. Stile filed a supplementary response. Continuation of Pet'r's Obj. to Magistrate Judge's Recommended Decision on 28 U.S.C. § 2255 Mot. Before this Court (ECF No. 687) (Stile Supp.).[1]

         II. FACTUAL BACKGROUND

         A. Crime and Punishment

         Early in the evening of September 12, 2011, James Stile entered the E.W. Moore & Son Pharmacy in Bingham, Maine. United States v. Stile, 845 F.3d 425, 427 (1st Cir. 2017). He wore a baseball cap, sunglasses, a dust mask, and purple rubber gloves. Id. As he entered the store, he pulled a sawed-off shotgun from his pants. Id. He walked to the pharmacy counter at the back of the store and ordered three employees to lie on their stomachs. Id. When a customer walked in, Mr. Stile forced him behind the pharmacy counter with the employees. Id. Mr. Stile handed the owner of the pharmacy a black duffel bag and ordered him to fill it with drugs. Id. Mr. Stile tied the hands and feet of the owner, the customer, and the employees with zip ties. Id. He then departed the store, taking about $12, 890 worth of drugs and $417 in cash. Id.

         On October 20, 2011, a federal grand jury indicted Mr. Stile for committing this pharmacy robbery. Indictment (ECF No. 8). On October 30, 2014, Mr. Stile pleaded guilty to this charge. Min. Entry (ECF No. 541). The Court sentenced Mr. Stile on May 29, 2015. J. (ECF No. 579). The Court ordered Mr. Stile incarcerated for 120 months, placed him on supervised release for five years following his incarceration, ordered him to pay restitution to E.W. Moore & Son, and ordered him to pay a $100 special assessment. Id.

         B. Appeal

         Mr. Stile appealed his sentence on substantive and procedural grounds. Stile, 845 F.3d at 427. On appeal, Mr. Stile raised three procedural issues: (1) the imposition of a two-level obstruction of justice enhancement under United States Sentencing Guidelines (U.S.S.G.) § 3C1.1; (2) the denial of a two-level reduction under U.S.S.G. § 3E1.2(a), and (3) whether the Court gave sufficient weight to Mr. Stile's evidence of drug addiction. Id. at 427-28. Finally, Mr. Stile made a “catch-all argument” that the 120-month sentence was “substantively unreasonable.” Id. at 428. On January 3, 2017, the First Circuit Court of Appeals rejected Mr. Stile's appeal and affirmed the sentence. Id. at 434.

         C. James Stile's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody

         In his initial filing, Mr. Stile raised three main issues, all relating to supposed ineffective assistance of counsel: (1) that his defense lawyer failed to move the Court for a downward departure under U.S.S.G. § 5K2.0, (2) that his defense lawyer failed to advise him about the firearms enhancement under U.S.S.G. § 2B3.1(b)(2)(C) and the dangerous weapon enhancement under U.S.S.G. § 2B3.1(b)(2)(E), and (3) that his defense lawyer failed to secure witnesses by subpoena or produce affidavits or statements at the sentencing hearing to mitigate allegations of obstruction of justice. Stile Mot. at 4.[2] Later in his motion, Mr. Stile questioned the procedural reasonableness of his sentence on three bases: (1) an alleged error by the sentencing court in applying a two-level enhancement on the ground that Mr. Stile had committed perjury while testifying at a suppression hearing, (2) an alleged error by the sentencing court by failing to grant a two-level reduction for acceptance of responsibility, and (3) an alleged error by the sentencing court in failing to consider the fact that a physician, not drug abuse, caused Mr. Stile's addiction to drugs. Id. at 5. Finally, Mr. Stile alleges that the Government was involved in prosecutorial misconduct by placing an informant in Mr. Stile's cell during a time that he was represented by defense counsel in an effort to gather information against him. Id. at 7.

         D. The Recommended Decision

         1. Downward Departure Under U.S.S.G. § 5K2.0

          After reviewing the facts and the legal standards, the Magistrate Judge turned to Mr. Stile's first allegation: that his defense counsel rendered ineffective counsel by failing to move for a downward departure under U.S.S.G. § 5K2.0 because Mr. Stile contends he “was subjected to torture and substandard conditions while he was in pretrial detention at various county jails.” Recommended Decision at 5-6. Mr. Stile's allegations of mistreatment were against Somerset County Jail (four to twelve electric shocks daily, kicked and beaten, held in solitary confinement), Cumberland County Jail (injured), and Strafford County Jail (inadequate medical treatment after a spinal injury caused by an assault by another inmate and inadequate treatment for a dental condition). Id. at 6-7. Mr. Stile alleges that the substance of his abuse allegations against the County Jails was before the Court at the sentencing hearing in the form of a Microsoft PowerPoint presentation. Id. at 7. He also contends that his appellate counsel was ineffective for failing to include an argument about the conditions of his confinement. Id. at 8.

         The Magistrate Judge reviewed the status of the law in the First Circuit concerning downward departures under § 5K2.0 based on the conditions of confinement and observed that in United States v. Ortiz, 6 Fed.Appx. 46 (1st Cir. 2001), the First Circuit commented that it had “never before held that conditions of confinement constitute a permissible basis for downward departure.” Recommended Decision at 9 (quoting Ortiz, 6 Fed.Appx. at 48). Even if available, the Magistrate Judge observed that such a departure would be “highly infrequent” and would be given the deference afforded the trial court upon review of a decision as to whether to permit a downward departure. Id. at 10 (quoting United States v. De Jesús, 223 Fed.Appx. 7, 8 (1st Cir. 2007)). Accordingly, the Magistrate Judge concluded that Mr. Stile “cannot establish the necessary substandard performance by sentencing counsel based on the failure to move for a downward departure, or by appellate counsel based on the failure to raise the issue on appeal.” Id. Finally, the Magistrate Judge noted that the sentencing judge was aware of Mr. Stile's allegations of abuse because, in addition to the Power Point presentation, and that Mr. Stile himself told the sentencing judge about his abuse in jail. Id. at 10, 10 n.10 (citing Sentencing Tr. 133, 136, 144).

         2. Firearms Enhancement Under U.S.S.G. § 2B3.1(b)(2)(C)

         In his motion, Mr. Stile challenged the effectiveness of his defense lawyer's alleged advice that he concede a five-level enhancement in the offense level under U.S.S.G. § 2B3.1(b)(2)(C) for a firearms-related specific offense characteristic. Id. at 11 (citing Stile Mot. Attach. 1 Mem. of Law and Argument in Support of Pet. James Stile's Mot. to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 at 22 (Stile Mem.)). Mr. Stile instead argued that “[w]hat was appropriate was a (3) three point enhancement pursuant to § 2B3.1(b)(2)(E).” Id. (citing Stile Mem. at 23). He also said that the application of both the firearms enhancement and the enhanced statutory penalty under 18 U.S.C. § 2118(c)(1) constitutes an impermissible double-counting. Id. (citing Stile Mem. at 28-29).

         The Magistrate Judge rejected this argument because his defense counsel did in fact argue for a three-level enhancement, rather than a five-level enhancement. Id. at 11 (citing Presentence Investigation Report ¶¶ 6, 22). The Magistrate Judge concluded that Mr. Stile had demonstrated neither deficient performance of defense counsel nor prejudice. Id. at 12. The Magistrate Judge also rejected the double-counting issue, noting that it was procedurally defaulted and citing First Circuit cases in which double-counting was permitted. Id. at 12-13.

         3. Obstruction of Justice Under U.S.S.G. § 3C1.1

         During Mr. Stile's sentencing hearing, the Court found that he had obstructed justice by assaulting an inmate for cooperating with the Government at the Somerset County Jail on December 20, 2011 and by committing perjury about a material matter during a suppression hearing before a federal judge. Tr. of Proceedings, Sentencing Proceedings 30:19-31:19; 39:5-70:19 (ECF No. 610) (Sentencing Tr.). The Magistrate Judge observed that Mr. Stile raised the obstruction of justice enhancement based on perjury before the First Circuit and that the First Circuit rejected his contentions. Recommended Decision at 14-15. Therefore, the Magistrate Judge concluded that he “may not relitigate the perjury finding.” Id. at 15.

         As to the assault, the Magistrate Judge did not find that Mr. Stile's additional evidence, namely the statement of an inmate who witnessed the assault, was persuasive. Id. at 16-17. Both at the sentencing hearing and in his pending motion, Mr. Stile claimed that the reason he assaulted the inmate was because the inmate made a sexual advance toward him, not because the inmate cooperated against him. Sentencing Tr. 44-24-45:1 (“The defendant says he assaulted the inmate because the other inmate had made a sexual advance”); Stile Mem. at 33 (“The petitioner aver[r]ed that the assault took place in retaliation to a sexual advance towards the Petitioner made by Ernest Almeida which was instigated by another inmate that inmate Almeida was paying protection to”). But after reviewing the new evidence, the Magistrate Judge was not convinced that it would have “carried significant weight, particularly given the Court's credibility determination.” Recommended Decision at 16-17.

         Mr. Stile also claimed “prosecutorial misconduct and related ineffective assistance of counsel during the investigatory process.” Id. at 17. He alleged that the inmate that he assaulted was placed in Mr. Stile's cell “purposely to review and inform the Government about documents counsel had provided Petitioner.” Id. Mr. Stile made several other allegations about this inmate. Id. The Magistrate Judge noted that Mr. Stile did not make these allegations at the sentencing hearing. Id. At the sentencing hearing, the Court found that “[a] fellow inmate informed authorities that Stile had confessed to having committed the robbery, relating many specific details that the inmate could not have made up.” Id. (quoting Stile, 345 F.3d at 428). The Court ultimately concluded that Mr. Stile had assaulted the inmate because of the inmate's cooperation with law enforcement. Id. After the Court announced its decision on the obstruction of justice enhancement, Mr. Stile asked to testify and the Court warned him that if he did so and if the Court concluded he lied, he could face a harsher sentence. Id. Hearing the Court's warning, Mr. Stile expressly stated that he would accept the Court's ruling. Id.

         The Magistrate Judge stated that he did not need to reach the merits of Mr. Stile's obstruction of justice claim, because he determined that Mr. Stile's attack on the perjury basis for obstruction of justice failed and therefore Mr. Stile could not demonstrate prejudice based on the assault as a separate basis for the same enhancement. Id. at 19. Even so, the Magistrate Judge wrote that if he reached the merits of the prosecutorial misconduct claim, it would fail on its merits. Id. According to the Magistrate Judge, this is because-among other things-even if Mr. Stile could have demonstrated a violation of constitutional magnitude from these facts, the exclusionary rule would not have barred the Court's consideration of the facts at his sentencing hearing. Id. at 19-20.

         4. Denial of Acceptance of Responsibility Under U.S.S.G. § 3E.1

         The Magistrate Judge rejected Mr. Stile's challenge to the denial of acceptance of responsibility at the sentencing hearing because the First Circuit discussed that issue and resolved it against Mr. Stile. Id. at 20-21 (citing Stile, 345 F.3d at 432).

         5. James Stile's Drug Addiction

         Similarly, the Magistrate Judge rejected Mr. Stile's objection to the sentencing court's supposed failure to consider the physician source of his drug addiction because the First Circuit resolved that issue against Mr. Stile. Id. at 21-22 (citing Stile, 345 F.3d at 433).

         6. Substantive Unreasonableness

         Lastly, the Magistrate Judge refused to revisit Mr. Stile's argument that the sentence was substantively unreasonable, because the First Circuit reached that issue and decided it against Mr. Stile. Id. at 22 (citing Stile, 345 F.3d at 433-34).

         E. James Stile's Objection

         On December 8, 2017, Mr. Stile filed his objections to the Recommended Decision. Stile Obj. at 1-8. Preliminarily, Mr. Stile states that he “agrees with the legal standards as set forth in this section of the Magistrate [Judge's] Report and Recommendation.” Id. at 1-2.

         1. Lack of Sworn Declarations to Attachments

         In his objection, Mr. Stile first concedes that he has no objection to the Magistrate Judge's statement about the factual and procedural background to his § 2255 petition, except that he disagrees with the contents of footnote one in the Recommended Decision. Id. at 1. The Court overrules that objection. In footnote one, the Magistrate Judge observed that the Government argued that some of Mr. Stile's allegations, which were set forth in attachments, should not be considered because they were not signed under penalty of perjury. Recommended Decision at 3, n.1. However, the Magistrate Judge noted that 28 U.S.C. § 1746 does not appear to require that each attachment to a § 2255 motion be separately sworn to, and that in any event, rather than dismiss his motion on this basis, the Court would allow Mr. Stile to submit amended filings containing sworn declarations. Id. Because the Magistrate Judge ruled against the Government on this issue, Mr. Stile is in no position to complain about a ruling in his favor.

         2. Assault

         Mr. Stile concedes that this Court need not consider the assault issue because the First Circuit decided it. Id. at 2. Nevertheless, Mr. Stile asks the Court to be “open-minded” and to “review the submission of the Petitioner in his 2255 as it should shed a new light on how the CI obtained his information which the Petitioner detailed extensively and defense counsel failed to detail for this Court when he did have the information available.” Id. Mr. Stile says that Alfarabick Malley's affidavit was not before the Court at the sentencing hearing, which the Court “acknowledged at the time of sentencing due to defense counsel's failure to obtain a statement or the witness himself for the sentencing proceeding.” Id. at 2-3. Mr. Stile says this information was not available to the sentencing court or to the Court of Appeals and he urges the Court to consider it. Id.

         3. Perjury

         Mr. Stile also urges the Court to grant a “fresh view” of the perjury allegation. Id. at 3. He contends that the issue was “tainted by defense counsel.” Id. at 3.

         4. Downward Departure Under § 5K2.0

         Mr. Stile reiterates his objection to his defense lawyer's decision not to move for a downward departure based on his being subjected to “torture and substandard conditions while he was a pretrial detainee at various county jails.” Id. at 3. Mr. Stile states that his defense lawyer “was to present video graphic ...


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