United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge.
action, Petitioner Anibal Orsini moves, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside or correct his sentence.
(Motion, ECF No. 174.) Following a guilty plea, Petitioner
was convicted of conspiracy to distribute more than 100 grams
of heroin and a quantity of cocaine hydrochloride and
fentanyl; the Court sentenced Petitioner to 188 months in
prison. (Judgment, ECF No. 145.) The First Circuit affirmed
the sentence. United States v. Orsini, 907 F.3d 115
(1st Cir. 2018). In response to the section 2255 motion, the
Government moved for dismissal. (Response, ECF No. 178.)
a review of the record, and after consideration of
Petitioner's motion and the Government's request for
dismissal, I recommend the Court grant the Government's
request to dismiss Petitioner's motion.
Factual Background and Procedural History
March 28, 2017, Petitioner plead guilty to knowingly and
intentionally conspiring to distribute 100 grams or more of
heroin and a quantity of cocaine hydrochloride and fentanyl,
pursuant to 18 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(B). (Change of Plea Hearing, ECF No. 98; Judgment
and July 2017, the Revised Presentence Investigation Report
(hereinafter PSR) revealed that federal agents had, in 2014
and 2015, identified Petitioner, who was located in Lawrence,
Massachusetts, as a supplier of heroin to dealers in Maine.
(PSR ¶ 6.) After a series of controlled drug purchases,
agents executed arrest and search warrants at
Petitioner's residences and a stash house, as well as the
residence of Petitioner's co-defendant, seizing fentanyl,
cocaine, firearms, and cash. (Id. ¶ 10.) The
probation officer concluded that Petitioner was accountable
for 39.99 kilograms of heroin, 116 kilograms of cocaine, and
1.06 kilograms of fentanyl, yielding a guideline base offense
level of 36. (Id. ¶¶ 13, 18.) Probation
recommended a 2-level increase to the offense level for the
involvement of a firearm, a 3-level increase for a managing
or supervising role in criminal activity involving five or
more participants, and a 3-level reduction for acceptance of
responsibility, resulting in a total offense level of 38.
(Id. ¶¶ 19, 23, 27 - 29.)
to the PSR, Petitioner's criminal history category was V,
which increased to VI because Petitioner qualified as a
career offender as a result of three prior controlled
substance offenses. (Id. ¶¶ 48 - 49.) The
resulting guideline sentencing range was 360 to 480 months of
imprisonment. (Id. ¶ 89.) Petitioner filed a
number of objections to the PSR, and argued that his base
offense level should be 30 and his criminal history category
should be V, but he did not specifically dispute the career
offender status. (Id. at 27 - 31.) The probation
officer wrote that “[a]fter consulting with defense
counsel, the Probation Office asserts that the parties agree
that this defendant is a career offender.”
(Id. at 27.)
October 16, 2017, sentencing hearing, the parties agreed that
the Court did not need to resolve disputed factual issues
regarding Petitioner's offense level because even without
the disputed facts, Petitioner's career offender status
established a minimum offense level that produced a guideline
range of 188 to 235 months. (Min. Entry for Sentencing
Hearing, ECF No. 143; Sentencing Transcript at 4, 9 - 10, 13,
ECF No. 162.) The Court sentenced Petitioner to a prison term
of 188 months imprisonment, followed by a term of five years
of supervised release. (Judgment at 2-3.)
October 18, 2017, Petitioner appealed from the sentence.
(Notice of Appeal, ECF No. 149.) On appeal, Petitioner
challenged whether his prior convictions qualified as
controlled substance offenses. Orsini, 907 F.3d at
119. The First Circuit noted the claim was
“dubious” on the merits, but determined that
Petitioner had waived his right to challenge the career
offender determination by intentionally relinquishing or
abandoning the issue. Id. at 119 - 121 (concluding
that at sentencing “appellant's counsel repeatedly
and unequivocally affirmed that the appellant should be
sentenced as a career offender, and the appellant himself
reprised this affirmation, ” which amounted to “a
deliberate stratagem designed to give the appellant a
distinct tactical advantage”).
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 ...