United States v. Leonardo, Cr. 17-072 WES

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
Writing for the CourtWilliam E. Smith District Judge
Decision Date06 April 2022
Docket NumberCr. 17-072 WES



Cr. No. 17-072 WES

United States District Court, D. Rhode Island

April 6, 2022


William E. Smith District Judge

Defendant/Movant Leoner Leonardo has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, ECF No. 44 (“Mot. to Vacate”), in the above-captioned matter. The government has filed a response to the Motion to Vacate. ECF No. 49 (“Gov't Resp.”). The Court has determined that no hearing is necessary. For the following reasons, the Motion to Vacate is DENIED and DISMISSED.

I. Background and Travel

Leonardo was arrested on July 11, 2017, after law enforcement officers executed a search warrant at his residence. Mot. to Vacate at 2-3. The warrant was obtained following surveillance of Leonardo making drug sales to a confidential informant and an undercover officer. Id. at 3. Leonardo was found lying on the floor in his room with his hands on his head. Id. at 4. A .25 caliber loaded handgun was located “approximately five feet from


where he was laying on the floor.” Id. The police also found heroin on Leonardo's person and elsewhere in the room, and seized approximately $100 from Leonardo. Id. at 3-4, 6.

Leonardo was initially prosecuted by the State of Rhode Island on drug and gun charges and sentenced to a two-year term of imprisonment, of which he served one year. Id. at 2-3. Leonardo was subsequently indicted by federal authorities on narcotics and weapons charges. Id. at 2; Indictment at 1-3, ECF No. 4.

On June 27, 2018, Leonardo pled guilty to conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846 (Count I); distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count II); possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count XII); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count XIV). Plea Agrmt. ¶ 1, ECF No. 25; Tr. of June 27, 2018, Change of Plea Hearing at 13-14, 17-18 (“Plea Hr'g. Tr.”), ECF No. 48. In exchange for Leonardo's guilty plea, the government agreed to dismiss nine additional distribution charges, Counts III-XI, and two other weapons charges, Counts XIII and XV). Plea Agrmt. ¶ 2; Plea Hr'g. Tr. at 18.


Leonardo was sentenced on March 12, 2019, to one day of incarceration on Counts I, II, and XII, to be served concurrently, and a consecutive term of 60 months imprisonment on Count XIV, followed by three years of supervised release. Tr. of March 12, 2019, Sentencing Hearing 32 (“Sent. Hr'g. Tr.”), ECF No. 43; J. 3-4, ECF No. 35. A special assessment in the amount of $400 was also imposed. Sent. Hr'g. Tr. at 33; J. at 8. Judgment entered on March 20, 2019. J. at 1. Leonardo did not appeal. Mot. to Vacate at 2.

On January 28, 2020, [1] Leonardo timely filed the instant Motion to Vacate.

II. Law

A. Section 2255

Section 2255 provides in relevant part
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence

28 U.S.C. § 2255(a).


Generally, the grounds justifying relief under 28 U.S.C. § 2255(a) are limited. A court may grant relief pursuant to § 2255 in instances where the court finds a lack of jurisdiction, a constitutional error, or a fundamental error of law. United States v. Addonizio, 442 U.S. 178, 185 (1979). “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.” Id. (internal quotation marks omitted). Moreover, § 2255 is not a substitute for direct appeal. Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994) (citing cases).

B. Procedural Default

“Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice,' or that he is ‘actually innocent'” of the crimes for which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998)(internal citations omitted); see also Coleman v. Thompson, 501 U.S. 722, 749-750 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986). “Cause” consists of “some objective factor external to the defense . . . .” Carrier, 477 U.S. at 488; see also Coleman, 501 U.S. at 753 (noting that the Carrier Court “explained clearly that ‘cause' under the cause and prejudice test


must be something external to the petitioner, something that cannot fairly be attributed to him”). To demonstrate prejudice, the “habeas petitioner must show ‘not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Carrier, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) (alteration in original); see also Derman v. United States, 298 F.3d 34, 45 (1st Cir. 2002)(“The showing of prejudice needed to cure a procedural default generally requires a habeas petitioner to demonstrate that there is a reasonable probability that the result of the trial would have been different absent the error. The question is not whether the petitioner, qua defendant, would more likely have received a different verdict had the error not occurred, but whether he received a fair trial, understood as a trial worthy of confidence, notwithstanding the bevue.”) (internal citations and quotation marks omitted). A petitioner must show both cause and prejudice. Derman, 298 F.3d at 45.

The “actual innocence” standard “requires the habeas petitioner to show that a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995)(citing Carrier, 447 U.S. at 496). To establish the requisite probability, “a petitioner


must show that it is more likely than not that no reasonable juror would have convicted him.” Id. Moreover, a credible claim of actual innocence “requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. at 324. “The standard is ‘demanding and permits review only in the “extraordinary” case.'” United States v. Marandola, 372 F.Supp.3d 7, 11 (D.R.I. 2019) (quoting House v. Bell, 547 U.S. 518, 538 (2006)). “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623. “In cases where the Government has foregone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges.” Id. at 624; see also Marandola, 372 F.Supp.3d at 11 (quoting Bousley, 523 U.S. at 624). However, “a gateway showing of actual-innocence may be established despite the fact that the petitioner entered a guilty plea.” Lopez-Correa v. United States, 537 F.Supp.3d 169, 184 (D.P.R. 2020) (citing Bousley, 523 U.S. at 624), appeal dismissed, No. 20-1965, 2021 WL 4806411 (1st Cir. May 6, 2021).

III. Discussion

Leonardo argues that he is actually innocent of the charge of using a firearm in relation to or in furtherance of a drug


trafficking offense. Mot. to Vacate at 3; see also 18 U.S.C. § 924(c).[2] The government contends that Leonardo has procedurally defaulted his claim by failing to raise it during his plea proceedings or on direct appeal. See Gov't Resp. at 7. The government further contends that Leonardo cannot overcome his procedural default by showing cause and prejudice for the default or that he is actually innocent of the § 924(c) charge. Id.

As the government notes, Leonardo does not attempt to argue cause. Gov't Resp. at 7. He did not file a reply to the government's Response. See Docket. During the plea proceedings, Leonardo did not argue that something “external to the defense, ”


Carrier, 477 U.S. at 488, prevented him from raising the issue of innocence of the 924(c) charge, see generally Plea Hr'g. Tr. Rather, he agreed to the government's recitation of the facts, including that he used the firearm in furtherance of his drug trafficking activities, during his plea hearing, id. at 13-17; see also Plea Agrmt. ¶ 4, and did not raise the ”in furtherance of” requirement during his allocution at sentencing, see Sent. Hr'g. Tr. at 23-27.

While in some circumstances ineffective assistance of counsel may constitute cause, see Carrier, 477 U.S. at 488, 492, Leonardo does not allege that his counsel was ineffective, Mot. to Vacate at 7. On the contrary, he states that “counsel of record, in the wide range of advice, did an objectively professional job. In fact [counsel] vigorously advocated with the Government and the Court for a lesser sentence.” Id.

To the extent Leonardo attempts to rely on United States v. Marin, 523 F.3d 24 (1st Cir. 2008), to establish cause, any such attempt would fail. While in some cases the novelty of a claim may constitute cause, see Lassend v. United States, 898 F.3d 115, 122 (1st Cir. 2018) (“A prisoner has cause for procedurally defaulting a constitutional claim where that claim was ‘so novel that its legal basis [wa]s not reasonably available to counsel' at the time of the default.” (quoting Reed v. Ross, 468 U.S. 1, 16 (1984))



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