United States District Court, D. Maine
ORDER AFFIRMING RECOMMENDED DECISION ON 28 U.S.C.
§ 2255 MOTION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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
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.
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).
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).
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).
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
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 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
Objections to the Recommended Decision
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.
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 ...