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Sawtelle v. United States

United States District Court, D. Maine

December 17, 2019

TERRENCE SAWTELLE, 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 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.

         Petitioner 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.

         Following 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.

         Factual Background and Procedural History

         In May 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.)

         On 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.)

         On 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.

         Discussion

         A. Legal Standard

         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)). 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). “[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 ...


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