United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison, U.S. Magistrate Judge
action, Petitioner moves, pursuant to 28 U.S.C. § 2255,
to vacate, set aside or correct his sentence. (Motion, ECF
No. 142.) Following a guilty plea, Petitioner was convicted
of conspiracy to manufacture, distribute, and possess with
intent to distribute marijuana in violation of 21 U.S.C.
§§ 841 and 846 (the Controlled Substances Act); the
Court sentenced Petitioner to twelve months and a day in
prison to be followed by three years of supervised release.
(Judgment, ECF No. 134.) Petitioner did not appeal from the
conviction or sentence.
claims his counsel was ineffective because counsel did not
assert a fourth amendment challenge and fifth amendment due
process challenge to the Controlled Substances Act. The
Government maintains that dismissal is warranted because
Petitioner has failed to demonstrate that the Controlled
Substances Act is susceptible to a constitutional challenge
or that his counsel was ineffective.
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 and dismiss Petitioner's motion.
Background and Procedural History
2014, several individuals began growing and processing
marijuana at a facility in Frankfort, Maine. (Prosecution
Version at 1, ECF No. 90.) Petitioner and a co-defendant
obtained marijuana from the facility with the intent to sell
the marijuana from a certain location in Bangor, Maine.
(Id.) On May 12, 2016, after obtaining a search
warrant, law enforcement officers searched the facility and
found marijuana and items used to manufacture and process
marijuana. (Id. at 1 - 2.)
three dates in July and August 2016, a confidential informant
purchased marijuana from Petitioner. (Id. at 2.) In
total, the confidential informant purchased 50.4 grams of
marijuana from Petitioner. (Id.) On August 25, 2016,
pursuant to a search warrant, law enforcement officers
searched the Bangor location and found more than three pounds
of marijuana and multiple digital scales. (Id.)
During an interview conducted after execution of the search
warrant, Petitioner admitted to law enforcement officials his
involvement in the conspiracy. (Id.)
September 14, 2017, Petitioner was indicted on one count of
conspiracy to manufacture, distribute, and possess with the
intent to distribute fifty kilograms or more of marijuana and
fifty or more marijuana plants. (Indictment, ECF No. 2.) On
June 28, 2018, Petitioner pled guilty to the charge. (Change
of Plea Hearing, ECF No. 92.) On February 12, 2019, the Court
sentenced Petitioner to 12 months and a day in prison to be
followed by three years of supervised release. (Judgment, ECF
No. 134.) Petitioner did not appeal from the judgment.
Petitioner filed his section 2255 motion on June 3, 2019.
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)).
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). “[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