United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
action, Petitioner Apolinar Ortiz-Islas moves, pursuant to 28
U.S.C. § 2255, to vacate, set aside or correct his
sentence. (Amended Motion, ECF No. 334.) Following a
jury trial, Petitioner was convicted of conspiracy to
distribute and to possess with intent to distribute five or
more kilograms of cocaine; the Court sentenced Petitioner to
170 months in prison. (Superseding Indictment, ECF No. 80 at
1; Jury Verdict Form, ECF No. 218; Judgment, ECF No. 284 at
1-2.) The First Circuit affirmed the conviction and the
sentence. United States v. Ortiz-Islas, 829 F.3d 19,
23 (1st Cir. 2016).
claims ineffective assistance of counsel based on
counsel's failure to negotiate a plea agreement, failure
to call certain witnesses at trial and sentencing, and
failure to contest a firearms enhancement. (Amended Motion at
a review of Petitioner's amended motion, the
Government's request for dismissal, and the record, I
recommend the Court grant the Government's request, and
dismiss Petitioner's amended motion.
Factual Background and Procedural History
jury found Petitioner guilty of conspiracy to distribute and
to possess with intent to distribute five kilograms or more
of cocaine; the conspiracy period commenced no later than
January 1, 2011, and ended no earlier than June 28, 2012.
(Superseding Indictment at 1; Jury Verdict Form.)
First Circuit summarized the sentencing findings:
At sentencing, the district court found Ortiz-Islas
accountable for almost 34 kilograms of cocaine, which (at the
time) gave him a base offense level of 34 under U.S.
Sentencing Guidelines Manual § 2D1.1(c)(3) (U.S.
Sentencing Comm'n 2013). The court applied a two-level
increase in light of evidence that Ortiz-Islas possessed a
gun at some of the drug deals, id. §
2D1.1(b)(1), but varied back downward by two levels at the
parties' urging in recognition of impending Guidelines
amendments providing two-level reductions in drug-quantity
offense levels. An offense level of 34 and a criminal history
category of I yielded a Guidelines sentencing range of 151 to
188 months. Id. (sentencing table). The Government
recommended a sentence at the top of this range. But taking
account of the other conspirators' sentences ([Chad]
Hallett received 48 months, [Mathieu] LeBlanc got 104, and
[Victor] Charles and [Robert] Rossignol 120 each), the court
sentenced Ortiz-Islas within the Guidelines range to 170
829 F.3d at 24. The judgment also provides that following the
prison term, Petitioner must serve a term of three years of
supervised release. (Judgment at 3.)
appeal, the First Circuit addressed two trial issues and two
sentencing issues. Regarding the trial, the Court concluded
that there was no impermissible variance between the
indictment and the proof at trial regarding the existence of
“a single conspiracy to distribute and to possess with
intent to distribute cocaine in Maine and elsewhere, ”
829 F.3d at 26; and that evidence of a September 2012
“sting ‘transaction'” that occurred
after the August 2012 indictment was admissible, id.
at 27. As to the sentence, the First Circuit concluded it was
“improbable” that this Court impermissibly used a
statutory maximum sentence of life based on 21 U.S.C. §
841(b)(1)(A), and a statutory minimum of zero based on
section 841(b)(1)(C), but in any event Petitioner was not
harmed, because the sentence imposed was below the statutory
maximum set forth in either section. 829 F.3d at 27-28. The
Court also concluded the sentence was neither procedurally
nor substantively unreasonable. Id. at 28-29.
asserts that he signed and placed his section 2255 motion in
the prison mailing system on September 26, 2017. (Motion, ECF
No. 324 at 12.) In December 2017, Petitioner requested leave
to file an amended motion. (Motion, ECF No. 331 at 1.) In
response to the motion to amend, the Government argued the
Court should only consider arguments that relate back to the
initial section 2255 motion, pursuant to Fed.R.Civ.P. 15(c),
i.e., that the Court not consider new claims.
(Response, ECF No. 332 at 2.) The Court granted the motion to
amend, and in January 2018, Petitioner filed an amended
motion. (Order, ECF No. 333; Amended Motion, ECF No. 334.)
The Government filed a response to the merits of
Petitioner's amended motion. (Response, ECF No. 338.)
person may move to vacate his or her sentence on one of four
different grounds: (1) “that the sentence was imposed
in violation of the Constitution or laws of the United
States”; (2) “that the court was without
jurisdiction” to impose its sentence; (3) “that
the sentence was in excess of the maximum authorized by
law”; or (4) that the sentence “is otherwise
subject to collateral attack.” 28 U.S.C. §
2255(a); see Knight v. United States, 37 F.3d 769,
772 (1st Cir. 1994).
burden is on the section 2255 petitioner to establish by a
preponderance of the evidence that he or she is entitled to
section 2255 relief. David v. United States, 134
F.3d 470, 474 (1st Cir. 1998); United States v.
DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
When “a petition for federal habeas relief is presented
to the judge who presided at the petitioner's trial, the
judge is at liberty to employ the knowledge gleaned during
previous proceedings and make findings based thereon without
convening an additional hearing.” United States v.
McGill, 11 F.3d 223, 225 (1st Cir. 1993).
collateral challenge is not a substitute for an appeal.
United States v. Frady, 456 U.S. 152, 165 (1982);
Berthoff v. United States, 308 F.3d 124, 127 (1st
Cir. 2002). “Accordingly, a defendant's failure to
raise a claim in a timely manner at trial or on appeal
constitutes a procedural default that bars collateral review,
unless the defendant can demonstrate cause for the failure
and prejudice or actual innocence.” Berthoff,
308 F.3d at 127-28.
allegation of ineffective assistance of counsel can excuse a
procedural default if the petitioner demonstrates that
counsel's representation “fell below an objective
standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). The petitioner
must also demonstrate that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at
694. A district court reviewing a claim of ineffective
assistance of counsel need not address both prongs of the
test because a failure to meet either prong will undermine
the claim. Id. at 697.
petitioner's “claims fail on the merits, his
related claims that counsel rendered ineffective assistance
in failing to press the claims at trial or on appeal must
also fail.” Tse v. United States, 290 F.3d
462, 465 (1st Cir. 2002) (per curiam).
hearings on § 2255 petitions are the exception, not the
norm, and there is a heavy burden on the petitioner to
demonstrate that an evidentiary hearing is warranted. An
evidentiary hearing ‘is not necessary when a [§]
2255 petition (1) is inadequate on its face, or (2) although
facially adequate, is conclusively refuted as to the alleged
facts by the files and records of the case.'”
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