United States District Court, D. Maine
ORDER AFFIRMING RECOMMENDED DECISION OF THE
Brock Hornby United States District Judge.
April 25, 2018, the United States Magistrate Judge filed with
the court, with copies to the parties, his Recommended
Decision on the Defendant's Motion Under 28 U.S.C. §
2255 (ECF No. 55). The defendant filed objections (ECF No.
56) to the Recommended Decision on May 11, 2018. The
government responded on May 31, 2018 (ECF No. 57). I then
issued a procedural order (ECF No. 58) asking for further
briefing from the government on the defendant's claim of
ineffective assistance of counsel, among other issues. Both
the government (ECF No. 63) and the defendant (ECF No. 64)
have filed additional memoranda.
reviewed and considered the Recommended Decision, together
with the entire record; I have made a de novo
determination of all matters adjudicated by the Recommended
Decision; and, with the additions below, I concur with the
recommendations of the United States Magistrate Judge for the
reasons set forth in the Recommended Decision, and determine
that no further proceeding is necessary.
Recommended Decision did not address the defendant's
claim of ineffective assistance of counsel. The Magistrate
Judge was certainly justified in not doing so, for the claim
was raised for the first time in reply. Pet'r's Reply
4-5 (ECF No. 54). United States v. Barrett, 178 F.3d
34, 57 (1st Cir. 1999) (“A first petition for
post-conviction relief under § 2255 should raise all
available claims. Informal reference to a new claim in a
reply brief will not suffice to raise a claim if the district
court does not address that claim in its order.”). But
as Barrett implies, nothing prevents me from
addressing it. Construing the defendant's papers
liberally, Prou v. United States, 199 F.3d 37, 42
(1st Cir. 1999),  I choose to reach, and reject, his Sixth
Amendment claim on the merits.
prove ineffective assistance under Strickland v.
Washington, 466 U.S. 668 (1984), the defendant must show
both deficient performance by counsel and prejudice.
Rivera v. Thompson, 879 F.3d 7, 12 (1st Cir. 2018).
Prejudice generally requires showing that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. (quoting
Strickland, 466 U.S. at 694).
defendant argues that at sentencing his lawyer should have
challenged the use of one of his convictions under Maine's
drug trafficking statute as a predicate for career offender
status, citing the First Circuit's then pending decision
in United States v. Mulkern, 854 F.3d 87 (1st Cir.
2017). Pet'r's Reply 4-5. Without that conviction, he
says, he would not have been sentenced as a career offender,
and his sentence would be significantly lower.
Pet'r's Resp. to Gov't's Suppl. Mem. 4-5 (ECF
No. 64). “[A]n extended term of imprisonment without
the evidentiary support necessary to justify it” is a
form of prejudice. United States v. Serrano-Mercado,
784 F.3d 838, 856 (1st Cir. 2015).
the defendant would have been sentenced as a career offender
regardless of that Maine drug trafficking conviction, then he
cannot show prejudice. Cf. United States v.
Barbosa, ___ F.3d ___, No. 17-1284, 2018 WL 3424682, at
*8 n.6 (1st Cir. July 16, 2018) (approving substitute
predicates in an ACCA appeal); United States v.
Hudson, 823 F.3d 11, 14 (1st Cir. 2016) (similar).
But see McCarthan v. Warden, FCI Estill, 811 F.3d
1237, 1250 (11th Cir. 2016) (“[T]he government may not
substitute a new predicate offense for an invalid predicate
offense for the first time on appeal where it failed to
object to the sentencing court's decision not to rely on
the new predicate offense at sentencing.” (citations
omitted)), reh'g en banc granted, opinion
vacated, No. 12-14989, 2016 WL 3878151 (11th Cir. May
24, 2016), and rev'd on other grounds on reh'g en
banc sub nom. McCarthan v. Dir. of Goodwill Indus.-Suncoast,
Inc., 851 F.3d 1076 (11th Cir. 2017). I turn, therefore,
to other qualifying convictions.
defendant has two drug trafficking convictions under Mass.
Gen. Laws Ann. ch. 94C, § 32A, one in 2006 and one in
2009. The defendant does not challenge the use of his 2009
conviction as a career offender predicate. As for the 2006
conviction, the First Circuit recently reaffirmed § 32A
convictions as proper ACCA predicates, Hudson, 823
F.3d at 14-15, and as the Magistrate Judge noted, they are
also proper career offender predicates. Rec. Dec. 7 n.6 (ECF
No. 55). But the defendant argues that the government has
twice conceded that his 2006 conviction is not a
suitable predicate, once at sentencing and again in its
response to his objections to the Recommended Decision, and
that the government is bound by those concessions.
Pet'r's Resp. to Gov't's Suppl. Mem. 4.
that the government has made no such concession. At
sentencing, all parties agreed that I did not need to find
whether the 2006 conviction was a career offender predicate
because it would not have affected the sentence. Sent'g
Tr. 4-5 (ECF No. 48). That is not a concession that the 2006
conviction was unsuitable as a predicate. And in its response
to the defendant's objections to the Recommended Decision
(ECF No. 57), the government noted that at sentencing I made
no finding about the 2006 conviction; it did not concede that
it was an unsuitable predicate.
the 2006 and 2009 Massachusetts trafficking convictions are
therefore available as substitute predicates. The defendant
thus was a career offender even if Mulkern
disqualifies his Maine trafficking convictions. He cannot
show prejudice, and his Sixth Amendment claim fails.
therefore Ordered that the Recommended
Decision of the Magistrate Judge is hereby
Adopted. The motion for habeas relief under
28 U.S.C. § 2255 is Denied without an
evidentiary hearing. No. certificate of appealability
pursuant to Rule 11 of the Rules Governing Section 2255 Cases
shall issue because there is no substantial showing of the
denial of a constitutional right within the meaning of 28
U.S.C. § 2253(c)(2).