The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
Jeffrey Merrill, proceeding pro se, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, for relief from his sentence following his guilty plea to charges of being a felon in possession of a firearm and of possessing a firearm with an obliterated serial number. He was sentenced to twenty-four months imprisonment on those charges. In support of his motion for habeas corpus relief, Merrill asserts that his trial counsel's representation was constitutionally ineffective because counsel did not raise United States Sentencing Guidelines ("U.S.S.G.") § 2k2.1(b)(2), which allows an offense level reduction for possession of a firearm for lawful sporting purposes. Merrill also moves for a hearing.
In addition, Merrill filed a "Response to and Motion for Summary Judgment," which was docketed separately as a cross motion for summary judgment and a response to the government's response to Merrill's motion for habeas corpus relief. The court has considered Merrill's arguments here.
A burning pickup truck was found in a remote area of Fitzwilliam, New Hampshire, in February of 2010, and the police determined that the truck belonged to Merrill. Merrill made an insurance claim for the truck. During the investigation of the fire, the police learned that Merrill had tried to sell a firearm to an individual several weeks before the fire. In March of 2010, Merrill admitted to police that he had paid two of his co-workers to "get rid" of his truck because Merrill was having financial difficulties.
The police then questioned Merrill about the firearm. Merrill admitted that he owned a .25 caliber pistol with an obliterated serial number. He said that he had purchased the pistol because he was having problems with foxes bothering his chickens. After the interview, police officers went to Merrill's house with him and found the pistol with a loaded magazine. Merrill had been convicted of assault in the second degree in 2006.
Because of his false insurance claim, Merrill was charged with wire fraud and mail fraud in one indictment, 10-cr-111-JD, and with being a felon in possession of a firearm and possessing a firearm with an obliterated serial number in a second indictment, 10-cr-110-JD. He pleaded guilty to all charges. He was sentenced to twenty-four months imprisonment on both counts in 10-cr-111-JD and twenty-four months on both counts in 10-cr-111-JD, to be served concurrently.
On appeal, Merrill argued that at sentencing he should have had the benefit of the "sporting exception" provided by U.S.S.G. § 2K2.1(b)(2). The court held that because Merrill did not raise the issue of the sporting exception in the district court, the issue could be reviewed for plain error only. The court further held that Merrill had the burden of proof on the issue and that the record did not conclusively establish that Merrill was entitled to the sporting exception. Therefore, the court concluded, there was no plain error in computing Merrill's sentence, which was affirmed. The judgment also noted that the court took no position on the question of ineffective assistance of counsel and suggested that Merrill proceed quickly if he intended to seek habeas corpus relief.
For purposes of habeas relief, Merrill contends that his trial counsel provided constitutionally ineffective assistance by failing to raise the sporting exception under § 2K2.1(b)(2). He also moves for a hearing and for appointment of counsel. The government objects, contending that Merrill cannot show that his counsel's performance was deficient or that he was prejudiced.
"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 . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence." § 2255(a). To succeed on a theory of constitutionally ineffective representation, the prisoner must show "both deficient performance and prejudice." United States v. Rodriguez, 675 F.3d 48, 58 (1st Cir. 2012). Counsel's performance is deficient if "representation 'fell below an objective standard of reasonableness.'" Moreno-Espada v. United States, 666 F.3d 60, 64 (1st Cir. 2012) (quoting Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010)). Prejudice means that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Moreno-Espada, 666 F.3d at 64 (quoting Padilla, 130 S. Ct. at 1482).
A. Deficient Representation
Under the Sentencing Guidelines, the base level for the offense of a felon in possession of a firearm is provided in § 2K2.1(a). In this case, § 2K2.1(a)(6) was applied, which provided a base offense level of fourteen. The offense level was increased by four because the firearm had an obliterated serial number, § 2K2.1(b)(4)(B).*fn1 The sporting exception to the Sentencing Guidelines for a felon in possession of a firearm provides that if the defendant possessed the firearm and ammunition "solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition," the base offense level would be reduced to six. § 2K2.1(b)(2).
Merrill represents that he obtained the pistol and ammunition only to shoot the foxes that were bothering his chickens, which he contends is a lawful sporting purpose.*fn2 He asserts that for sentencing his counsel should have advocated for the sporting exception under § 2K2.1(b)(2). In response, the government contends that Merrill's counsel's failure to raise the sporting exception was not deficient performance because Merrill was not eligible for the ...