United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge.
Karim Davis moves, pursuant to 28 U.S.C. § 2255, to
vacate, set aside or correct his sentence. (Motion, ECF No.
60.) Following a guilty plea, Petitioner was convicted of
possession with intent to distribute heroin and cocaine base;
the Court sentenced Petitioner to 151 months in prison.
(Judgment, ECF No. 47.) The First Circuit affirmed the
sentence. United States v. Davis, 873 F.3d 343 (1st
Cir. 2017). In response to the section 2255 motion, the
Government moved for dismissal. (Response, ECF No. 65.)
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.
Background and Procedural History
February 10, 2016, Petitioner pled guilty to possession with
intent to distribute heroin and cocaine base. (Change of Plea
Hearing, ECF No. 30; Judgment at 1.)
Probation Office determined that Petitioner's base
offense level for the quantity of controlled substances was
26. (Second Revised Presentence Investigation Report ¶
22, hereinafter PSR). Probation recommended a two-level
criminal livelihood enhancement and a three-level enhancement
for Petitioner being a leader in a criminal scheme involving
five or more participants. (Id. ¶¶ 23,
25.) Petitioner's prior convictions produced a criminal
history score of eight, which corresponds to a criminal
history category of IV. (Id. ¶¶ 33 - 44.)
Defendant, however, was determined to be a career offender
due to two prior felony convictions for controlled substance
offenses, setting his base offense level at 32 and his
criminal history category at VI. (Id. ¶ 28,
45.) After a three-level reduction for acceptance of
responsibility, Petitioner had a total offense level of 29,
which, when combined with his criminal history category of
VI, yielded a guideline imprisonment range of 151 - 181
months. (Id. ¶ 67.)
August 16, 2016, after overruling objections concerning the
drug quantity, the criminal livelihood enhancement, and the
career offender designation, the Court sentenced Petitioner
to 151 months of imprisonment. (Sentencing Transcript at 3 - 4,
9 - 18, 34 - 35, ECF No. 52; Judgment at 2; PSR at 24 - 26)
appeal, Petitioner argued that his prior conviction under one
of New York's distribution statutes, NYPL § 220.31,
which criminalizes an offer to sell controlled substances,
did not meet the guideline definition of a prior controlled
substance offense. Davis, 873 F.3d at 345. On
October 11, 2017, the First Circuit disagreed, citing prior
in-circuit caselaw analyzing a similar New York provision.
Id. at 345 - 46 (discussing United States v.
Bryant, 571 F.3d 147 (1st Cir. 2009) and NYPL §
220.39). The First Circuit also rejected Petitioner's
challenge concerning the criminal livelihood enhancement.
Id. at 346.
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