Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Swan v. United States

United States District Court, D. Maine

October 3, 2018

CAROLE SWAN, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE AND DENYING MOTION REITERATED REQUEST FOR BAIL

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The Court affirms the recommended decision of the Magistrate Judge to deny an inmate's habeas corpus petition, which is based on the inmate's contention that the United States Supreme Court case of McDonnell v. United States, __ U.S. __, 136 S.Ct. 2355 (2016), invalidates her three convictions for committing Hobbs Act extortion in violation of 18 U.S.C. § 1951(a). McDonnell does not provide the inmate any relief because she was convicted of taking bribes as town selectman in return for facilitating a town contract in favor of the person from whom she received money, and these official acts fit squarely within the category of an “official act” under 18 U.S.C. § 201 as the Supreme Court clarified in McDonnell.

         I. RECOMMENDED DECISION ON § 2255 PETITION

          The United States Magistrate Judge filed with the Court on February 15, 2018, his Recommended Decision (ECF No. 472). Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 472) (Recommended Decision). Ms. Swan filed her objection to the Recommended Decision on March 9, 2018 (ECF No. 475). Pet'r's Mandatory Objection to Magistrate's Recommended Decision (ECF No. 475) (Swan Objection). The Government filed its response to the objections on March 19, 2018 (ECF No. 476). Gov't's Resp. in Opp'n to Def.'s Objection to Recommended Decision Denying for Mot. for Reduction (ECF No. 476) (Gov't's Resp.).

         A. Bias

         In her objection, Ms. Swan claims that the Magistrate Judge demonstrated “clear[] bias” when he “failed the full review of the merits of the meritorious submission of cause, new legal precedent and facts that allow for the consideration of vacating the Hobbs Act conviction and the correction of a sentencing error.” Swan Objection at 1. The Court soundly rejects Ms. Swan's unsupported assertion that the Magistrate Judge exhibited bias against her because he ruled against her. As for her claim that the Magistrate Judge failed to perform a full review of her § 2255 petition, this is simply incorrect. The Magistrate Judge issued a sixteen-page recommended decision in which he carefully analyzed Ms. Swan's arguments, considered the potential impact of McDonnell v. United States, __ U.S. __, 136 S.Ct. 2355 (2016), and the cases that have interpreted McDonnell. Reaching a legal conclusion contrary to what one party is arguing is not evidence of bias. The Court rejects Ms. Swan's bias contentions.

         B. Collateral Attack

         In her objection, Ms. Swan appears to quote United States v. Billy-Eko, 8 F.3d 111 (2d Cir. 1993):

It is substantially agreed (with other circuits) that in most cases there is good reason to allow a defendant to make claims on collateral attack even if those claims were not brought to direct appeal.

Swan Objection at 2 (quoting Billy-Eko []). But Ms. Swan misquotes the Second Circuit. The correct quotation is:

We substantially agree that in most cases there is good reason to allow a defendant to make ineffective assistance claims on collateral attack even if those claims were not brought on direct appeal. We therefore join other circuits in allowing petitioners in most cases to make those claims under § 2255, subject to the limitation discussed below.

Billy-Eko, 8 F.3d at 114.

         Ms. Swan's misquotation is significant because her § 2255 petition is not based on alleged ineffective assistance of counsel. It is based on the potential impact of McDonnell, a case the United States Supreme Court decided on June 27, 2016, after Ms. Swan's Hobbs Act trial in September 2013. Mot. for Reduction in Accordance to 18 U.S.C. [§] 3582 at 5 (ECF No. 462) (“In consideration of the aforementioned, The Petitioner respectfully requests the Honorable District Court to give particular weight in what has been expressly recognized by the Supreme Court in McDonnell v. United States, supra as the legal basis to reduce and correct the sentence imposed”).

         Indeed in footnote 6, the Magistrate Judge explained that if Ms. Swan's claim were based on ineffective assistance of counsel, it would still be non-meritorious. Recommended Decision at 8 n.6. In any event, the Magistrate Judge reached the nub of Ms. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.