Sayer v. United States
| Decision Date | 20 August 2015 |
| Docket Number | 2:14-cv-00505-DBH,2:11-cr-00113-DBH |
| Parties | SHAWN SAYER, Petitioner, v. UNITED STATES OF AMERICA, Respondent |
| Court | U.S. District Court — District of Maine |
In this action, Petitioner Shawn Sayer moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence, and he also moves for a sentence modification, pursuant to 18 U.S.C. § 3582(c). (Motion, ECF No. 169.)1
Following his entry of a conditional plea of guilty, Petitioner was convicted of cyberstalking pursuant to 18 U.S.C. § 2261A(2), and he was sentenced to the statutory maximum term of 60 months of imprisonment, followed by three years of supervised release. (Plea Tr., ECF No. 197 at 18-19; Judgment, ECF No. 139 at 1-3.) Petitioner appealed from his conviction and sentence. On appeal, Petitioner challenged the constitutionality of the cyberstalking statute and argued that his sentence above the guidelines range was unreasonable; the First Circuit affirmed both the conviction and the sentence. United States v. Sayer, 748 F.3d 425, 427 (1st Cir. 2014).
Petitioner filed a timely section 2255 motion in November 2014.2 He claims ineffective assistance of counsel based on the conduct of the three attorneys who represented him successively during discovery, his plea hearing and sentencing, and his direct appeal.3 Petitioner's ineffective assistance claims focus on (1) counsel's decision to address 18 U.S.C. § 2265A, which doubles the penalty for a cyberstalking offense under 18 U.S.C. § 2261A when the offender has a prior conviction for a stalking or domestic violence offense, at sentencing rather than at the plea stage of the case; (2) counsel's pretrial investigation, particularly of (a) Petitioner's mental state, (b) alleged threats directed at Petitioner by the victim's friends, (c) the Government's shutdown of certain Internet accounts, and (d) a consent defense based on the victim's past sexual history; (3) counsel's alleged lack of contact with Petitioner; (4) counsel's alleged sentencing predictions and promises; (5) counsel's advice that Petitioner not deny that he created "dozens of" profiles of the victim, when Petitioner contends that he wanted to admit that he only created two such profiles; (6) counsel's failure adequately to address at sentencing the Government's introduction of Petitioner's cellmate's statements; and (7) counsel's failure to obtain a psychological evaluation of Petitioner for pre-trial and sentencing purposes.
Petitioner also asserts two additional section 2255 claims: (1) a claim, previously asserted in Petitioner's direct appeal, based on an allegation that the Government failed to provide adequate notice, before the sentencing hearing, that it would rely on the statements of Petitioner's cellmate; and (2) a procedurally defaulted claim that Petitioner's plea was involuntary because he had insufficient time to consider the plea, and because he was uncertain as to whether his penalty wouldbe doubled under 18 U.S.C. § 2265A. Finally, Petitioner moves, pursuant to 18 U.S.C. §3582(c), for a sentence modification based on an amendment to U.S.S.G. § 5G1.3.
The Government has moved for summary dismissal of Petitioner's section 2255 motion and moves to dismiss his section 3582 motion. (Response, ECF No. 201.) After a review of Petitioner's motion, the Government's request for dismissal, and the record, I recommend that the Court grant the Government's request, and dismiss both of Petitioner's motions.
In May 2011, Petitioner was charged by complaint with cyberstalking, in violation of 18 U.S.C. §§ 2261A(2)(A) and 2261(b)(5),4 a woman who was in Louisiana for several months in2009. (Complaint, ECF No. 1 at 1.) Counsel was appointed at Petitioner's initial appearance. (ECF No. 8.)
In July 2011, Petitioner was indicted on two counts, one of which was for cyberstalking, 18 U.S.C. § 2261A(2)(B), 2261(b)(5), and 2265A (Count I); the other count alleged identity theft, 18 U.S.C. § 1028(a)(7), 1028(b)(2)(B) (Count II).5 (Indictment, ECF No. 18.) Petitioner pled not guilty at his arraignment. (Minute Entry, ECF No. 24.)
In October 2011, counsel moved to withdraw. (Motion to Withdraw, ECF No. 46.) The Court granted the motion to withdraw and appointed new counsel. (Minute Entry, ECF No. 49; Order, ECF No. 50.) In November 2011, newly appointed counsel, who had served for less than three weeks, successfully moved to withdraw because Petitioner had retained counsel. (Notice of Appearance, ECF No. 53; Motion to Withdraw, ECF No. 54; Order, ECF No. 55.)
In November 2011, Petitioner filed a motion to re-open the detention hearing (Motion to Re-open Detention Hearing, ECF No. 56); in January 2012, Petitioner filed a motion to suppress. (Motion to Suppress, ECF No. 65); and in February 2012, Petitioner filed a motion to dismiss Count I of the indictment (Motion to Dismiss, ECF No. 80).
After a detention hearing in April 2012, the Court ordered Petitioner detained pending trial. (Minute Entry, ECF No. 95; Order, ECF No. 115.) In May 2012, the Court denied Petitioner'smotion to dismiss Count I of the indictment. (Decision and Order, ECF No. 108 at 3, 6, 24.) Subsequently, following a partial evidentiary hearing on the issue of whether Petitioner was in custody when he was questioned, the Court denied the motion to suppress. (Decision and Order, ECF No. 110 at 1.)
In August 2012, Petitioner entered into a plea agreement, and, at a plea hearing, the Court accepted Petitioner's conditional plea of guilty as to Count I for cyberstalking. (Plea Agreement, ECF No. 120; Conditional Plea, ECF No. 122; Minute Entry, ECF No. 123; Plea Tr., ECF No. 197 at 19.) The Court dismissed the charge of identity theft (Count II) on the Government's motion. (Judgment, ECF No. 139 at 1.)
In his sentencing memorandum, Petitioner requested a sentence of 15 months. (Petitioner's Sentencing Memorandum, ECF No. 130 at 10-14.) The Government requested a sentence of 78 months. (Government's Sentencing Memorandum, ECF No. 131 at 1.)
At sentencing, the Court found the sentencing facts as set forth in the revised presentence investigation report (Sentencing Tr., ECF No. 150 at 64) and determined that the base offense level was 18. (Id.) Because Petitioner had violated a court protection order and engaged in a long-term pattern of stalking, threatening, and harassing behavior, pursuant to U.S.S.G. § 2A6.2(b)(1), the Court added four levels. (Id.) Pursuant to U.S.S.G. § 3E1.1, the Court subtracted three levels for acceptance of responsibility. (Id.) The Court thus found a total offense level of 19. (Id.) The Court determined that the criminal history was category III, which, when combined with a total offense level of 19, yielded a guideline range of 37 to 46 months. (Id. at 66.)
Because the two state court convictions that the Government presented as predicate convictions did not qualify as predicate convictions under section 2265A, the Court concluded that Petitioner was not subject to a double penalty under 18 U.S.C. §2265A. The convictions did notqualify because the elements of those crimes, as stated in the charging instruments in both cases, did not match the elements of the federal statutes for those crimes. (Id. at 66-69.) The Court concluded that because section 2265A did not apply, pursuant to 18 U.S.C. § 2261(b)(5), the statutory maximum term of imprisonment was five years. (Id. at 69.)
The Court ultimately determined that an upward deviation from the guidelines range of 37 to 46 months to the statutory maximum sentence of five years was appropriate. In support of this conclusion, the Court cited, "the use of anonymous third parties to harass the victim and the extra danger that that caused; the extra fear that was caused to the victim" by the use of third parties; the effect of posting the victim's identity, address, and intimate details on the internet; Petitioner's many encounters with law enforcement and the lack of effect the encounters had on Petitioner; Petitioner's on-going obsession with the victim, which obsession was demonstrated by Petitioner's communications with his cell-mate; the need to protect the public; the seriousness of the offense; the need for a just punishment; and the need for respect for the law. (Id. at 71-73.)
Petitioner appealed from this Court's denial of his motion to dismiss and from the sentence. New counsel was appointed to represent Petitioner in the appeal. (United States v. Sayer, No. 12-2489 (1st Cir. Jan. 7, 2013)). The First Circuit affirmed in May 2014. Sayer, 748 F.3d at 427. The First Circuit rejected Petitioner's as-applied First Amendment challenge, reasoning that Petitioner's conduct, to the extent it involved speech, was not protected by the First Amendment because the conduct was criminal. Id. at 433-34 () (quoting United States v. Stevens, 559 U.S. 460, 471 (2010)). The Court also concluded that the section 2261A(2)(A) is not unconstitutionally overbroad, and that Petitioner waived his argument that the statute is void for vagueness. Id. at 435-36.
The First Circuit rejected Petitioner's contention that this Court should have deviated downward from the sentencing guidelines under U.S.S.G. § 5K2.23, which permits a reduction to account for time served on prior convictions, provided certain conditions are met. Id. at 436. The First Circuit concluded that this Court did not abuse its discretion when it varied upward from the guidelines range. Id. at 437. Finally, the First Circuit determined that Petitioner's argument that he had no notice that the cellmate's statements would be introduced at sentencing lacked credibility, and the Circuit concluded that this Court did not abuse its discretion in relying on the cellmate's testimony at sentencing. Id. at 437-38.
Petitioner filed a ...
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