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Nobrega v. United States

United States District Court, D. Maine

May 7, 2018

DOMINGÓS NÓBREGA, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AFFIRMING RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

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

         A federal prisoner moves the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The United States Magistrate Judge withheld ruling on one issue because the United States Supreme Court was considering it in a different case but otherwise recommended dismissing the motion. The Court reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; the Court has made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and the Court concurs with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision, and determines that no further proceeding is necessary. In light of the Supreme Court's recent resolution of the remaining issue regarding the residual clause of the guideline provision defining a crime of violence, the Court also denies the movant's remaining motions.

         I. Procedural Background

         On May 23 and May 24, 2011, Movant, Domingós Nóbrega, was tried and convicted of being a felon in possession of a firearm, pursuant to 18 U.S.C. §§ 922(g)(1), 924(a)(2). Min. Entry (ECF Nos. 91, 93). On July 13, 2012, the Court sentenced Mr. Nóbrega to a period of incarceration of 120 months. J. (ECF No. 228). Mr. Nóbrega appealed, and the First Circuit affirmed the conviction and sentence on May 20, 2014. J. of the United States Court of Appeals for the First Circuit (ECF No. 275).

         On April 13, 2015, Mr. Nóbrega filed a motion to vacate, set aside, or correct his sentence. Mot. Under 28. U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 287). On August 26, 2015, the Government filed a response. Gov't's Mot. for Summary Dismissal of Def.'s Mot. Under 28 U.S.C. § 2255 (ECF No. 307). Mr. Nóbrega filed his reply on November 23, 2015. Pet'r's Resp. to the Gov't's Resp. to Pet'r's 28 U.S.C. § 2255 (ECF No. 316).

         On May 31 and June 6, 2016, Mr. Nóbrega filed a supplemental motion challenging on vagueness grounds the validity of the then-operative sentencing guideline provisions the Court used to calculate his offense level, U.S.S.G. § 2K2.1(a)(2) and § 4B1.2(a)(2), in light of a new case, Johnson v. United States, 576 U.S. ___, 137 S.Ct. 886 (2015) (Johnson II), which the Supreme Court made effective retroactively. Mot. for Notice of Applicability of New Retroactive Case, U.S. v. Johnson (ECF No. 335); Mot. to Vacate Sentence Enhancement 2K2.1(a)(2) with Priors, by Johnson v. U.S. (2015) (ECF No. 336).

         On June 29, 2016, the Government moved to stay resolution of Mr. Nóbrega's habeas motion pending the outcome of Beckles v. United States, 580 U.S., 137 S.Ct. 886 (2017), a case then before the Supreme Court regarding the impact of Johnson II. Mot. to Stay (ECF No. 343). On July 6, 2016, the Court partially denied the Government's motion to stay because Mr. Nóbrega raised other arguments beyond the Johnson II issue. Order Denying in Part the United States of America's Mot. to Stay (ECF No. 344). On the same day, the Magistrate Judge granted the remainder of the motion to stay Mr. Nóbrega's supplemental motion pending the outcome of Beckles. Order on Mot. to Stay (ECF No. 346).

         On July 25, 2016, Mr. Nóbrega filed a motion to lift the stay, contending that he would be eligible for immediate release if he were able to prevail on the Johnson II issue. Mot. for Expedited Consideration for Relief, from Stay, Document 346, 344 (ECF No. 347). On August 30, 2016, the Magistrate Judge granted relief from the stay to permit briefing on the Johnson II issue. Order on Mot. for Relief from Stay (ECF No. 358). On September 28, 2016, the Government filed a response to the supplemental motion. Gov't Resp. to Claim Based on Johnson II (ECF No. 361). Mr. Nóbrega filed replies on October 14 and October 17, 2016. Mot. to Obj./Respond to the Resp't's Resp. to the Petitioner's Mot. to Vacate Sentence, Under Johnson (2015) (ECF No. 364); Suppl. Decl. of Aff. Of Affirmation and Affirmative Action of Domingós Nóbrega and Obj. to Resp't's Filed Sept. 28 Received Oct 11-16 (ECF No. 366).

         On January 30, 2017, the Magistrate Judge issued his Recommended Decision on the issues contained in Mr. Nóbrega's initial habeas motion. Recommended Decision on 28 U.S.C. 2255 Mot. (ECF No. 369) (Recommended Decision). The Magistrate Judge withheld recommendation on the Johnson II question, reinstating the stay of that issue pending the outcome in Beckles. Order Granting Request for Stay (ECF No. 368). Mr. Nóbrega filed his objections to the Recommended Decision on February 14 and February 24, 2017. Mot. Pursuant 28 U.S.C. 636(b)(1)(B), Objs. To Magistrate Judge's Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 373) (Pet'r's Obj.); Mem. in Response to 2255 Recommendation (ECF No. 376). The Government chose not to respond to Mr. Nóbrega's objections.

         Mr. Nóbrega also objected to the Magistrate Judge's decision to withhold recommendation on the Johnson II question. Mot. to Obj. to Gov't. Mot. to Stay, Doc 347 & 358 Prejudice Towards Pet'r, Release from a Illegal Sentence (ECF No. 370). He submitted a series of additional filings on the Johnson II issue, making further arguments and citing additional cases. Mot. of Notice to Apply. U.S.S.C. Dimaya v. Lynch (ECF No. 380); Letter (ECF No. 383); Applying Johnson II 803 F.3d 110, 1120 (9th Cir 2015) to Pet'r's Case as Merit, to Aid in his Resentencing Mots. (ECF No. 389). The Government responded to several of these filings on June 8, 2017. Gov't's Mot. for Summ. Dismissal of Def.'s Claimed Entitlement to ReliefPursuant to Johnson v. United States (ECF No. 388). Mr. Nóbrega filed a reply on July 7, 2017. Affidavit Entry Mot. to Resp. to Gov't's Resps. To File No.: 369 & 380 Johnson v. U.S. & Dimaya v. Lynch & 2255 Issue (ECF No. 392). The Government rested its arguments on July 13, 2017. Gov't's Resp. to Nóbrega's Filings that were Docketed on June 26, 2017 and July 7, 2017 (ECF No. 394). Finally, on December 18, 2017 and January 8, 2018, Mr. Nóbrega submitted additional notices. Notice to Ct. of all Priors Used in this Case are Null & Void, They are all Over 15 Year[s] Old, Order PSI to be Reclassified to Reflect (ECF No. 395); Notice, U.S. Probation Parol[e]/Halfway House Legal Contracts Were Given to Pet. to Place a Mark on Them by Threat, Duress, Coercion, Contracts Null-in-Void (ECF No. 396). The Government has not responded to either notice.

         II. Discussion

         A. Objections to the Recommended Decision

         Most of Mr. Nóbrega's objections reiterate the arguments the Magistrate Judge rejected with clear and thoughtful reasons. For example, Mr. Nóbrega writes extensively on the issue of a grand jury witness because “without this witness the [Government] would not [have] been able to obtain the indictment in this case and there would be no need for this 2255[.]” Pet'r's Obj. at 4-5. But as the Magistrate Judge explained, Mr. Nóbrega's trial counsel could not have been ineffective regarding the grand jury witness because defense counsel is not permitted to be present during the grand jury proceedings. Recommended Decision at 12.

         At other places, Mr. Nóbrega argues about the truth of the underlying events or the sufficiency of the evidence but makes no connection to his legal claim of ineffective assistance of counsel beyond vague assertions, such as counsel “was ...


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