United States District Court, D. Maine
ORDER AFFIRMING THE RECOMMENDED DECISION OF THE
MAGISTRATE JUDGE ON 28 U.S.C. § 2255 MOTION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE .
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
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
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.
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.
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
Crime and Punishment
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.
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.
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.
James Stile's Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody
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
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.
The Recommended Decision
Downward Departure Under U.S.S.G. § 5K2.0
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.
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).
Firearms Enhancement Under U.S.S.G. §
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).
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.
Obstruction of Justice Under U.S.S.G. § 3C1.1
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.
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.
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.
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.
Denial of Acceptance of Responsibility Under U.S.S.G. §
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).
James Stile's Drug Addiction
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).
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).
James Stile's Objection
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.
Lack of Sworn Declarations to Attachments
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
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.
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.
Downward Departure Under § 5K2.0
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 ...