Carter v. United States
| Decision Date | 10 November 2016 |
| Docket Number | 2:13-cr-00196-NT-1,2:15-cv-00186-NT |
| Parties | ROBERT KELLY CARTER, Petitioner, v. UNITED STATES OF AMERICA, Respondent |
| Court | U.S. District Court — District of Maine |
In this action, Petitioner Robert Kelly Carter moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 57.) Following a guilty plea, Petitioner was convicted of possession of firearms by a convicted felon; the Court sentenced Petitioner to 120 months in prison, followed by three years of supervised release. (Judgment, ECF No. 42 at 1-3; Indictment, ECF No. 14.) Petitioner did not appeal from the judgment.
Petitioner asserts ineffective assistance of counsel based on the following grounds: (1) failure to move to suppress evidence from a search that petitioner contends was unconstitutional (Motion at 8); (2) failure to file a notice of appeal and failure to pursue an appeal (id. at 4); (3) failure to investigate adequately a prior conviction that formed the basis for a sentencing enhancement (id. at 5); (4) failure to investigate adequately bases for mitigation at sentencing (id. at 6); and (5) failure to challenge adequately the requirement that Petitioner participate in sex offender treatment as a special condition of supervised release (id. at 8).
The Government filed a response, and requested dismissal. (Response, ECF No. 71 at 1.) Petitioner retained counsel, who filed Petitioner's reply. (Reply, ECF No. 79 at 33.)
Following a review of Petitioner's motion and the Government's request for dismissal, I recommend pursuant to Rule 7 of the Rules Governing Section 2255 Proceedings, the Court allow Petitioner twenty days to submit admissible evidence that Petitioner believes corroborates his communications with his counsel regarding the notice of appeal. I also recommend that if Petitioner files any such evidence, the Court permit the Government to file a response to Petitioner's submission within 20 days of the filing. I further recommend the Court deny Petitioner's motion as to the remaining claims.
In 2012, Petitioner's probation under a Kentucky sentence was transferred from Kentucky to Maine. (Motion at 19; Kentucky state court petition, ECF No. 57-8 at 3, 13.) Petitioner, therefore, was on probation at the time of the events that gave rise to the federal criminal prosecution.
According to the prosecution version, which Petitioner, in his plea colloquy, told the Court he did not dispute, one of Petitioner's female friends contacted Petitioner's probation officer on September 18, 2013, and told him that Petitioner possessed at least two handguns at his residence in Lisbon, Maine, where Petitioner lived alone. (Prosecution Version, ECF No. 24 at 1; Plea Tr., ECF No. 54 at 13-14.) Later that day, law enforcement and the probation officer conducted a search of Petitioner's residence, pursuant to Petitioner's probation conditions. (Prosecution Version at 1.) After the officers told Petitioner they intended to conduct a search based on the friend's report, Petitioner told the officers where they would find the guns; officers found the guns in the place identified by both Petitioner and the friend. (Id. at 1-2.)
Petitioner was indicted in November 2013 for a violation of 18 U.S.C. § 922(g)(1), for knowingly possessing two firearms after having been convicted of the following three crimes:(1) residential entry in Indiana (2001 conviction); (2) sexual battery in Indiana (2004 conviction); and (3) sexual abuse in the first degree in Kentucky (2007 conviction). (Indictment at 1.) The indictment alleged that Petitioner was subject to the penalty provisions of 18 U.S.C. § 924(e). (Id.)
In December 2013, following a hearing conducted pursuant to Fed. R. Crim. P. 11, the Court accepted Petitioner's guilty plea. (Hearing Tr., ECF No. 54 at 17.) At sentencing, the Court concluded that Petitioner was not subject to the fifteen-year minimum sentence under section 924(e), because the residential entry conviction did not qualify as a predicate violent felony. (Sentencing Tr., ECF No. 55 at 15-16.)
The Court determined the sentencing guidelines range as follows: The base offense level was 24, from which the Court subtracted three points for Petitioner's acceptance of responsibility, for a total offense level of 21. (Id. at 20, 23.) The Court found that Petitioner had a criminal history category of five (category V), and thus determined the guidelines range to be from 70 to 87 months. (Id. at 23.)
The Court departed upward from the guidelines range, and imposed a sentence of 120 months, relying on a number of the sentencing factors set forth in 18 U.S.C. § 3553, most particularly the need to protect the public. (Sentencing Tr., ECF No. 56 at 9-15.) Among other things, the Court considered testimony of the woman who informed law enforcement that Petitioner had a gun; the Court also considered Petitioner's criminal history, including the convictions for residential entry, sexual battery, and sexual abuse in the first degree. (Id. at 11-14).
The Court imposed a prison term of 120 months, followed by supervised release of three years. (Id. at 15-16; Judgment at 2-3.) In addition, the Court imposed, as a special condition ofsupervised release, the requirement that Petitioner participate in sex offender treatment. (Sentencing Tr., ECF No. 56 at 19; Judgment at 4.)
At the conclusion of the sentencing hearing, the Court informed Petitioner that he had the right to appeal: (Sentencing Tr., ECF No. 56 at 21.)
Petitioner asserts that he placed his section 2255 motion in the prison mailing system on May 13, 2015. (Motion at 35.) The motion was filed timely on May 18, 2015.1 (Id. at 1.)
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).
A section 2255 petitioner must 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). "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) () (citing Frady, 456 U.S. at 167-68).
An allegation of ineffective assistance of counsel can excuse a procedural default, but only if the petitioner demonstrates both that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the petitioner's defense. Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)); Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007). A district court reviewing a claim of ineffective assistance of counsel need not address both prongs of the test because a failure to meet either prong will undermine the claim. Strickland, 466 U.S. 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).
In a claim of ineffective assistance of counsel for failure to file a notice of appeal, however, a petitioner need not allege prejudice. See Rodriguez v. United States, 395 U.S. 327, 330 (1969)( that "the courts below erred in rejecting petitioner's application for [section 2255] relief because of his failure to specify the points he would raise were his right to appeal reinstated"); Bonneau v. United States, 961 F.2d 17, 23 (1st Cir. 1992) (same).
Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (...
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