United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. NIVISON U.S. MAGISTRATE JUDGE.
action, Petitioner Daniel Colby, Jr., moves, pursuant to 28
U.S.C. § 2255, to vacate, set aside or correct his
sentence. (Motion, ECF No. 146.) Following a jury trial,
Petitioner was convicted of possession of a firearm by a
felon; the Court sentenced Petitioner to 95 months in prison.
(Judgment, ECF No. 125 at 1-2.) The First Circuit affirmed
the sentence on appeal. United States v. Colby, 882
F.3d 267 (1st Cir. 2018).
review of the record, Petitioner's motion, and the
Government's request for dismissal, I recommend the Court
grant the Government's request, and deny Petitioner's
request for relief.
Factual Background and Procedural History
a two-day jury trial and guilty verdict in June 2016,
Petitioner was convicted in December 2016 of a single count
of possession of a firearm by a prohibited person, pursuant
to 18 U.S.C. § 922(g)(1). (Judgment at 1; Trial
Transcripts I, II, ECF Nos. 113, 114.) The Court sentenced
Petitioner to a prison term of 95 months, followed by a term
of three years of supervised release. (Judgment at 2-3.)
appealed from the sentence and argued the Court erred when it
imposed three sentencing enhancements. Colby, 882
F.3d at 269. The First Circuit concluded that the Court did
not err when it found Petitioner possessed a stolen gun, and
therefore the Court did not err when it imposed a two-level
enhancement for possession of a stolen firearm, pursuant to
USSG § 2K2.1(b)(4)(A), id. at 272-73; that the
Court did not err when it found Petitioner had threatened
another (Forrest Smith) with the gun, and therefore the Court
did not err when it imposed a four-level enhancement for
possession of a firearm in connection with another felony
offense, pursuant to USSG § 2K2.1(b)(6)(B), id.
at 273; and that the Court did not err when it imposed a
two-level enhancement for obstruction of justice, pursuant to
USSG § 3C1.1, based on the Court's conclusion that
Petitioner's “completely contradictory
accounts” of “key facts in his case” were
not the result of “‘confusion, mistake, or faulty
memory, '” id. at 273-74 (quoting
United States v. Dunnigan, 507 U.S. 87, 94 (1993)).
The Supreme Court denied Petitioner's petition for a writ
of certiorari. Colby v. United States, 138 S.Ct.
Petitioner's section 2255 motion, he claims the Court
lacked jurisdiction over his criminal prosecution because 18
U.S.C. § 3231 violates the Quorum Clause of the United
States Constitution; he alleges trial and appellate counsel
provided ineffective assistance; and he alleges prosecutorial
misconduct and judicial bias.
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).
se habeas petitions normally should be construed
liberally in petitioner's favor.” United States
v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, the 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. Procedural default is an affirmative
defense. Sotirion v. United States, 617 F.3d 27, 32
(1st Cir. 2010). The First Circuit has recognized that
“federal courts have the authority to consider
procedural default sua sponte.” Rosenthal
v. O'Brien, 713 F.3d 676, 683 (1st Cir. 2013)
(citing Brewer v. Marshall, 119 F.3d 993, 999 (1st
Cir. 1997)); see also Daniels v. United States, 532
U.S. 374, 382-83 (2001) (recognizing that “procedural
default rules developed in the habeas corpus context apply in
§ 2255 cases”) (citing Frady, 456 U.S. at
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
different. A 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 Strickland test because a failure to
meet either prong will undermine the claim. Id. at
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.'”
Moreno-Morales v. United States, 334 F.3d 140, 145
(1st Cir. 2003) (citation omitted) (quoting DiCarlo,
575 F.2d at 954 (quotation marks omitted)).
dismissal of a motion is permitted when the allegations are
“‘vague, conclusory, or palpably incredible,
'” even “‘if the record does not
conclusively and expressly belie [the] claim.'”
David, 134 F.3d at 478 (quoting Machibroda v.
United States, 368 U.S. 487, 495 (1962)). A court can
reasonably require a petitioner to supply the court with
salient details of the claim prior to permitting discovery or
a hearing. Id. (holding that “the district
court did not abuse its discretion in refusing to license a
Claims and Analysis
1. Claim of lack of jurisdiction
contends that Public Law 80-772, which is codified in
relevant part at 18 U.S.C. § 3231, and which provides in
part that “[t]he district courts of the United States
shall have original jurisdiction, exclusive of the courts of
the States, of all offenses against the laws of the United
States, ” was not properly enacted by Congress.
Petitioner argues section 3231 violates the Quorum Clause of
the United States Constitution, and therefore it does not
confer jurisdiction on district courts. Petitioner thus
contends the Court lacked jurisdiction to convict him.
(Motion at 4; Reply, ECF No. 159 at 15-17.)
jurisdictional challenge was raised and rejected in
United States v. Gonzalez-Arenas, 496 Fed.Appx. 866
(10th Cir. 2012):
[Appellant] contends that the grant of criminal jurisdiction
to federal district courts found in 18 U.S.C. § 3231
violates the Quorum Clause of the United States Constitution.
In relevant part, the Quorum Clause provides that “a
Majority of each [congressional chamber] shall constitute a
Quorum to do Business.” U.S. Const. art. 1, § 5,
cl. 1. Gonzalez-Arenas argues that a quorum was not present
for a vote taken in the House of Representatives when §
3231 was passed into law by the Act of June 25, 1948, Pub.L.
No. 80-772, 62 Stat. 683 (codified in scattered sections of
18 U.S.C.). Thus, he concludes, his convictions should be
vacated because the district court lacked jurisdiction. This
argument is frivolous and “foreclosed by the
‘enrolled-bill rule,' under which a bill certified
by the presiding officers of each chamber [of Congress]-as
was the case with § 3231, see 94 Cong. Rec. 568
(1948)- is ‘complete and unimpeachable.'”
United States v. Small, 487 Fed.Appx. 302, 303 (7th
Cir. 2012) (unpublished) (quoting Marshall Field &
Co. v. Clark, 143 U.S. 649, 672, 12 S.Ct. 495, 36 L.Ed.
294 (1892)); see also United States v. Davis, 375
Fed.Appx. 611, 612 (7th Cir. 2010) (substantially the same);
United States v. Farmer, 583 F.3d 131, 151-52 (2d
Cir. 2009) (same).
496 Fed.Appx. at 867; see Nelson v. United States,
No. 18-514C, 2018 WL 5318247, at *3 & n.4 (Fed. Cl. Oct.
29, 2018) (unpublished) (noting the petitioner's
“contentions concerning Public Law 80-772 have
previously been found to be frivolous”).
in Buczek v. Constructive Statutory Trust Dep. Trust
Corp., No. 1:10-cv-00382-MAT, 2011 WL 4549206, at *4,
2011 U.S. Dist. Lexis 111539, at *10 (W.D. N.Y. Sept. 29,
2011), the court concluded the same jurisdictional challenge
was “patently without merit.” The court noted:
“This contention, or a variation upon it, has been
offered by countless federal prisoners as a basis for §
2255 relief and has been roundly rejected by all the federal
courts [that] have considered such claims.” 2011 WL
4549206, at *4, 2011 U.S. Dist. Lexis 111539, at *11. The
court discussed a number of district court cases in which
courts had rejected the argument, and it concluded:
Based on these cases, the United States Supreme Court's
consistent application of the statute in question as a
foundation of jurisdiction, and the absence of any legitimate
contrary authority, this Court likewise rejects Buczek's
jurisdictional argument as wholly without merit. The
“Quorum Issue”, in short, does not present a
claim upon which § 2255 habeas relief can be granted.
2011 WL 4549206, at *4-5, 2011 U.S. Dist. Lexis 111539, at
*13-14 (footnote omitted).
analysis set forth in Gonzalez-Arenas, 496 Fed.Appx.
at 867; Nelson, 2018 WL 5318247, at *3 & n.4,
and Buczek, 2011 WL 4549206, at *4-5, 2011 U.S.
Dist. Lexis 111539, at *13-14, is sound. Petitioner's
jurisdictional claim fails.
Claims of ineffective assistance of trial counsel
Claims regarding counsel's comments at sidebar
Petitioner alleges trial counsel told the Court at sidebar
that counsel believed Petitioner was guilty. (Motion at 5;
Reply at 6-7.) The sidebar conference at issue occurred
immediately before Petitioner's testimony:
[COUNSEL]: Your honor, I'm just so reluctant to be the
facilitator of what I believe to be false testimony. I
don't know that it is, but just am in a box.
THE COURT: I think if you believe it but you don't know
it for sure, then you're okay. I think it's an issue
of whether your client told you A and now he want[s] to tell
you B, that's a different matter but - [COUNSEL]:
It's more than -- THE COURT: -- the jury has a right to
hear testimony and if you believe it's one way but your
client tells you it's another way unless you - you know,
you have your obligations under 3.3, I'll give you a
[COUNSEL]: I don't know anything that he has to say to be
THE COURT: All right.
[COUNSEL]: I believe in my mind, and it puts me in an ethical
situation -- THE COURT: I understand.
[COUNSEL]: -- that I'm very uncomfortable with. (Trial
Tr. II at 134.)
fact that counsel informed the Court in a general way of his
concerns about Petitioner's testimony does not constitute
substandard practice. Counsel revealed no confidential
information and did not otherwise breach his responsibility
to his client. In addition, Petitioner was not prejudiced,
because sidebar conferences, as a matter of course, are
conducted out of the hearing of the jury and thus have no
bearing on the jury's verdict. See United States v.
Martí-Lόn, 524 F.3d 295, 298 (1st
Cir. 2008) (noting there was nothing in the record that
“establishes or even suggests that the jury heard the
reference” made at sidebar). Petitioner also cannot
demonstrate prejudice because after the sidebar conference,