Widi v. United States

• Decision Date: 31 August 2017
• Docket Number: 2:09-cr-00009-GZS,2:14-cv-00015-GZS
• Parties: DAVID WIDI, Petitioner, v. UNITED STATES OF AMERICA, Respondent
• Court: U.S. District Court — District of Maine

DAVID WIDI, Petitioner, v. UNITED STATES OF AMERICA, Respondent

2:09-cr-00009-GZS

2:14-cv-00015-GZS

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

August 31, 2017

RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION and MOTION TO CERTIFY QUESTION

In this action, Petitioner David Widi moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 369.) Petitioner also moves to certify a question to the New Hampshire Supreme Court regarding the interpretation of a state statute. (Motion, ECF No. 395.)¹

Following a jury trial, Petitioner was convicted of possession of firearms and ammunition by a felon, and of manufacturing marijuana; the Court sentenced Petitioner to 108 months in prison, to be followed by three years of supervised release.² The First Circuit affirmed the conviction and sentence on appeal. United States v. Widi, 684 F.3d 216(1st Cir. 2012). The Government requests summary dismissal of the section 2255 motion. (Response, ECF No. 422 at 1.)

Following a review of Petitioner's motions and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss both the section 2255 motion and the motion to certify a question of state law to the New Hampshire Supreme Court.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner was convicted of possession of firearms and ammunition by a felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1); and manufacturing marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count 2).³ (Judgment, ECF No. 258 at 1.) The Court sentenced Petitioner to prison terms of 108 months on Count 1, and 60 months on Count 2, with the terms to be served concurrently, to be followed by terms of three years of supervised release on each of the counts, with the terms to be served concurrently. (Id. at 2-3.)

On January 7, 2013, following Petitioner's unsuccessful appeal, the Supreme Court denied Petitioner's petition for a writ of certiorari. Widi v. United States, 133 S. Ct. 893 (2013).

In April 2013, Petitioner filed a motion for a new trial in which motion he argued that there was no valid predicate felony, and that a Franks hearing was justified based on new evidence. (Motion to Vacate Conviction and Order a New Trial, ECF No. 332.) TheCourt denied the motion. (Order on Defendant's Motion to Vacate Conviction, ECF No. 341 at 1.) The First Circuit affirmed. (United States v. Widi, Nos. 13-2089, 13-2442 (1st Cir. Apr. 23, 2015) ("We have carefully reviewed the parties' briefs and relevant portions of the record, and we conclude for substantially the same reasons as the district court that a new trial was not in order.").) The Supreme Court denied certiorari. Widi v. United States, No. 15-6202 (U.S. Apr. 23, 2015).

Petitioner asserts that he placed his section 2255 motion in the prison mailing system on January 6, 2014. (Motion at 45.) The Government does not dispute the timeliness of the motion.⁴ (Response at 2 n.2.) Upon Petitioner's motions, the action was stayed, and the stay was extended to December 2015. (Motions to Stay, ECF Nos. 371, 376, 380; Orders, ECF Nos. 372, 378, 389.)

Petitioner's section 2255 motion asserts 26 numbered grounds. In December 2015, the Court granted Petitioner's motion for leave to amend or supplement his section 2255 motion to add an additional ground. (Motion for Leave to Amend, ECF No. 392; Supplemental Claim, ECF No. 392-1; Order, ECF No. 394.)

In the same month, Petitioner also filed a motion to certify a question to the New Hampshire Supreme Court regarding the interpretation of a New Hampshire statute. (Motion to Certify, ECF No. 395.) In January 2016, the Government filed a response to the motion to certify a question to the New Hampshire Supreme Court (Response, ECFNo. 396), and in June 2016, the Government filed a combined response to the section 2255 motion, the supplemental claim, and the motion to certify. (Response, ECF No. 422.)⁵

Upon Petitioner's motion, the Court stayed the case pending the First Circuit's decision on Petitioner's appeal of the denial of Petitioner's request for counsel. (Motion to Stay, ECF No. 431; Orders, ECF Nos. 434, 435.) The First Circuit dismissed the appeal as interlocutory. (Widi v. United States, No. 16-1557 (1st Cir. Nov. 14, 2016).) Petitioner then filed a motion for leave to conduct discovery; the Court denied the motion. (Motion for Leave to Conduct Discovery, ECF No. 439; Order, ECF No. 448.)

In May 2017, Petitioner filed a reply in support of his section 2255 motion. (Reply, ECF No. 451.)

II. 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). "[I]ssues 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) (quotation marks omitted).

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, 127-28 (1st Cir. 2002). When a petitioner raises a claim "for the first time on habeas, he must show both 'cause' that excuses the procedural default and 'actual prejudice' resulting from the alleged error." Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). Alternatively, a petitioner may demonstrate actual innocence as a basis for habeas relief. Bousley, 523 U.S. at 622. "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Id. at 623.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the federal constitutional standard by which claims of ineffective assistance of counsel are evaluated; Strickland requires a petitioner to demonstrate that "counsel's representation fell below an objective standard of reasonableness," and 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." Strickland, 466 U.S. at 688, 694. A court need not "address both components of the inquiry if the defendant makes an insufficient showing on one . . . ." 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).

A 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). "[A] habeas petitioner is notautomatically entitled to a hearing and normally should not receive one if his allegations are 'vague, conclusory, or palpably incredible.'" David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). The First Circuit has held that a Petitioner who "fails to reasonably substantiate his ineffective assistance of counsel claim with any material issues of fact . . . has not 'overcome the presumption of regularity which the record . . . imports . . . .'" United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984) (quoting Walker v. Johnston, 312 U.S. 275, 286 (1941)).

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).

B. Claims and Analysis

1. Detention during search (Ground 1)

Petitioner alleges that he was illegally detained during the execution of a search warrant at his home. (Motion at 4; Attachment, ECF No. 369-1 at 2.) Petitioner argues that Bailey v. United States, 568 U.S. 186 (2013), which was decided after the First Circuit's 2012 decision on Petitioner's appeal, provides new grounds for relief.⁶(Attachment at 3-4.) In support of his argument, Petitioner refers to the Court's decision on a motion to dismiss a civil case in which Petitioner alleged constitutional torts related to his criminal conviction. (Widi v. McNeil, No. 2:12-cv-00188-JAW, Order Denying Plaintiff's Motion to Stay; Denying Plaintiff's Motion to Strike; and Granting Defendant McNeil's Motion to Dismiss, ECF No. 170.) In its decision, the Court assumed, without deciding, that Petitioner's detention at a location away from his home would have violated Bailey had the search occurred after Bailey was decided. (Id. at 17.)⁷

Petitioner, however, cannot rely on Bailey for relief in this case because "the Supreme Court has not held that Bailey applies retroactively to cases on collateral review. 'Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.'" Reed v. Matevousian, No. 1:15-cv-01019-SKO HC, 2016 WL 7374586, at *9, 2016 U.S. Dist. Lexis 176074, at *25 (E.D. Cal. Dec. 19, 2016) (quoting Teague v. Lane, 489 U.S. 288, 310 (1989)); Pinion v. United States, Nos. 7:09-CR-19-FL-1, 7:13-CV-284-FL, 2017 WL 2266853, at *3, 2017 U.S. Dist. Lexis 77800, at*6 (E.D. N.C. May 23, 2017) (holding, for purposes of an issue of timeliness under 28 U.S.C. § 2255(f)(3), that Bailey involved a limitation on the Supreme Court's holding in Summers, rather than a newly recognized right). Because B...