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Colby v. United States

United States District Court, D. Maine

April 23, 2019

DANIEL COLBY, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         In this 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).

         After a 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.

         I. Factual Background and Procedural History

         Following 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.)

         Petitioner 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. 2664 (2018).

         In 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.[1]

         II. Discussion

         A. Legal Standards

         A 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).

         “[P]ro 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).

         A 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 167-68).

         An 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 697.

         If a 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).

         “Evidentiary 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)).

         Summary 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 fishing expedition”).

         B. Claims and Analysis

          1. Claim of lack of jurisdiction

         Petitioner 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.)

         Petitioner's 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”).

         Similarly, 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).

         The 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.

         2. Claims of ineffective assistance of trial counsel [2]

         a. Claims regarding counsel's comments at sidebar

          Petitioner alleges trial counsel told the Court at sidebar that counsel believed Petitioner was guilty.[3] (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 copy.
[COUNSEL]: I don't know anything that he has to say to be false.
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.)[4]

         The 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, ...


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