United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison, U.S. Magistrate Judge.
moves, pursuant to 28 U.S.C. § 2255, to vacate, set
aside or correct his sentence. (Motion, ECF No. 764.) Following
a jury trial, Petitioner was convicted of conspiracy to
distribute and possess with intent to distribute cocaine
base; the Court sentenced Petitioner to 260 months in prison.
(Judgment, ECF No. 691; Corrected Indictment, ECF No. 80.)
The First Circuit affirmed the conviction. United States
v. Ocean, 904 F.3d 25, 36 - 40 (1st Cir. 2018).
claims the Court lacked jurisdiction to convict him because,
according to Petitioner, the Controlled Substances Act (the
Act) only applies to registrants (i.e., physicians) and thus
does not apply to him. For the same reason, Petitioner also
argues the indictment was indefinite and vague. (Motion at
13.) The Government requests dismissal. (Response, ECF No.
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
February 2015, the grand jury indicted Petitioner for
conspiring to distribute and possess with intent to
distribute cocaine base in violation of 21 U.S.C. § 841
and § 846. (Indictment, ECF No. 3; Corrected Indictment,
ECF No. 80.) At the conclusion of a trial in June 2016, a
jury found Petitioner guilty. (Minute Entry, ECF No. 512;
Jury Verdict, ECF No. 520.) In February 2017, Petitioner was
sentenced to 260 months imprisonment to be followed by five
years of supervised release. (Judgment, ECF No. 691.)
Petitioner appealed, and the First Circuit affirmed the
conviction in September 2018. Ocean, 904 F.3d at 36
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
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).
the law of the case doctrine, “issues disposed of in a
prior appeal will not be reviewed again by way of a 28 U.S.C.
§ 2255 motion.” Singleton v. United
States, 26 F.3d 233, 240 (1st Cir. 1994) (internal
modifications and quotation marks omitted); see also
Elwell v. United States, 95 F.3d 1146, 1996 WL 516138 at
*5 (1st Cir. 1996) (holding that a petitioner “is not
entitled on collateral review to relitigate issues raised on
direct appeal, absent an intervening change ...