Newton v. United States

• Decision Date: 25 March 2021
• Docket Number: 1:20-cv-00299-JAW,1:17-cr-00073-JAW-1
• Parties: DARRELL NEWTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent
• Court: U.S. District Court — District of Maine

DARRELL NEWTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent

1:17-cr-00073-JAW-1

1:20-cv-00299-JAW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

March 25, 2021

RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. (Motion, ECF No. 1010.) Following a guilty plea, Petitioner was convicted of conspiracy to distribute controlled substances; the Court sentenced Petitioner to 240 months in prison. (Judgment, ECF No. 961.) Petitioner did not file an appeal.

Petitioner claims his attorney provided ineffective assistance of counsel by: (1) failing to object to a firearm-related sentencing guideline enhancement; (2) misleading Petitioner concerning the possibility of a greater mandatory minimum sentence if Petitioner withdrew his guilty plea; (3) neglecting to advise Petitioner of alternatives to the plea agreement, such as an open plea; (4) failing to file an appeal; and (5) disregarding Petitioner's directive to file a motion to withdraw Petitioner's plea. (Amended Motion, ECF No. 1028.)¹ The Government requests dismissal. (Response, ECF No. 1049.)

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, deny Petitioner's request for relief, and dismiss Petitioner's motion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In May 2017, the grand jury indicted Petitioner on one count of conspiracy to distribute and possess with intent to distribute heroin, fentanyl, and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and one count of possession with intent to distribute heroin and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (Indictment, ECF No. 2.) In November 2017, pursuant to 21 U.S.C. § 851, the Government filed an information charging Petitioner with a prior conviction, notifying Petitioner that he was subject to enhanced penalties if convicted, including a mandatory minimum 20 years in prison. (Information, ECF No. 357); 21 U.S.C. § 841(b)(1)(A) (2016).

In October 2018, Petitioner pled guilty to the conspiracy charge pursuant to a plea agreement. (Change of Plea Hearing, ECF No. 686.) As part of the plea agreement, Petitioner waived his right to appeal if the sentence did not exceed 276 months, and the Government agreed to seek dismissal of the second count of the indictment, to recommend a guidelines reduction for acceptance of responsibility, and to recommend a sentence of no more than 300 months in prison. (Amended Plea Agreement, ECF No. 687.) Petitioner admitted that between 2015 and 2017, his participation was central to a conspiracy that transported cocaine base, heroin, and fentanyl from Rochester, New York for storage anddistribution through twelve to fifteen houses in central Maine. (Amended Prosecution Version, ECF No. 688.)

In December 2018, Congress and the President enacted the First Step Act, Pub. L. No. 115- 391. Section 401 of the First Step Act reduced the statutory mandatory minimum penalties pursuant to 21 U.S.C. §§ 841 and 851 for defendants found to have certain prior convictions. Id. § 401(a). The First Step Act also changed the category of qualifying offenses from a "felony drug offense" to a "serious drug felony" or a "serious violent felony." Id. A "serious drug felony" is a drug felony punishable by more than ten years imprisonment for which the offender was released from prison within fifteen years of the new offense after serving at least twelve months in prison. Id.; 18 U.S.C. § 924(e)(2).

Before sentencing, the Government acknowledged that the applicable enhanced mandatory minimum for Petitioner's prior conviction had changed from twenty years to fifteen years, but because the Department of Justice instructed federal prosecutors to allege and prove the new factors for the enhanced mandatory minimum, which it had not done before Petitioner's guilty plea, the Government agreed that the ten-year mandatory minimum based on the drug quantity applied to Petitioner. (Motion to Dismiss Prior Offender Information, ECF No. 874; Order, ECF No. 879.) The parties modified the plea agreement to provide that Plaintiff waived his right to appeal from a sentence that did not exceed 240 months, rather than the 276 months to which the parties agreed before the First Step Act became law. (Modification of Plea Agreement, ECF No. 915.)

In October 2019, the Court sentenced Petitioner to 240 months in prison to be followed by five years of supervised release. (Judgment, ECF No. 961.) Petitioner did not file an appeal.

DISCUSSION

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 in the law"); White v. United States, 371 F.3d 900, 902 (7th Cir. 2004) (collecting cases and explaining limited exceptions).

"Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing 'is not necessary when a [§] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.'" Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (quotation marks omitted)).

Summary dismissal of a motion is permitted when the allegations are "'vague, conclusory, or palpably incredible,'" even "'if the record does not conclusively and expressly belie [the] claim.'" David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). A court can reasonably require a petitioner to supply the court with salient details of the claim prior to permitting discovery or a hearing. Id. (holding that "the district court did not abuse its discretion in refusing to license a fishing expedition").

B. Firearm Enhancement

Petitioner argues that his attorney provided ineffective assistance of counsel by failing to object to a firearm-related guideline sentencing enhancement. (Motion at 7; Amended Motion at 3-5; Reply at 1-3, ECF No. 1071.) The Court found that the conspiracy, which Petitioner led, trafficked in firearms and some members were involved in drug-related...