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Mitchell v. United States

United States District Court, D. Maine

January 10, 2020



          John C. Nivison, U.S. Magistrate Judge.

         Petitioner moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence.[1] (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).

         Petitioner 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. 783.)

         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 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 - 40.


         A. Legal Standards

         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 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 697.

         If a 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).

         Under 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 ...

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