United States District Court, D. New Hampshire
Perkins, pro se Seth R. Aframe, Esq.
McCafferty United States District Judge
Perkins, proceeding pro se, seeks habeas corpus relief,
pursuant to 28 U.S.C. § 2255, from his sentence for
conspiracy to possess with intent to distribute a controlled
substance, possession of a firearm by a convicted felon, and
possession of a firearm in furtherance of a drug trafficking
crime. See United States v. Perkins, 14-cr-104-LM
(D.N.H. Nov. 3, 2015). Perkins alleges that his sentence was
improperly enhanced under a provision of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924. He
argues that under Johnson v. United States, ___ U.S.
___, 135 S.Ct. 2551 (2015), his sentence is invalid. Perkins
also raises two separate ineffective assistance of counsel
prisoner in custody under a sentence of a federal district
court may seek release “on the ground that the sentence
was imposed in violation of the Constitution or the laws of
the United States.” § 2255(a). Sworn allegations
in the petition are taken as true “unless those
allegations are merely conclusory, contradicted by the
record, or inherently incredible.” Owens v. United
States, 483 F.3d 48, 57 (1st Cir. 2007) (internal
quotation marks omitted).
United States v. Perkins, 14-cr-104-LM
(“Criminal Case”), Perkins pleaded guilty to one
count of conspiracy to possess with intent to distribute a
controlled substance in violation of 21 U.S.C. §§
846, 841(b)(1)(B)(iii) (Count I), one count of possession of
a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1) (Count II), and one count of possession of a
firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A) (Count III). The
court sentenced Perkins to imprisonment for a term of 87
months on Counts I and II to be served concurrently, and 60
months on Count III to be served consecutively, for a total
of 147 months. See doc. no. 68 at 2.
court grouped Counts I and II for the purposes of sentencing.
The court determined Perkins's base offense level for
Count I to be 24 pursuant to U.S.S.G. § 2D1.1(c)(8). The
calculation was based upon the marijuana equivalent of
219.138 kilograms of controlled substances attributed to the
defendant. The court next determined Perkins's base
offense level for Count II to be 20 pursuant to U.S.S.G.
§ 2K2.1(a)(4)(A) because the defendant was convicted of
a felony crime of violence before committing the instant
offense. Because Counts I and II were grouped
together, the court applied the highest offense level in the
group. Perkins, 14-cr-104, doc. no. 74 at 5. Here, Count I
had the higher offense level.
court did not calculate a guideline range for Count III
because pursuant to 18 U.S.C. § 924(c)(1)(A) and
U.S.S.G. § 5G1.2(a), the mandatory minimum sentence of
five years must run consecutive to any other sentence
imposed. Finally, Perkins received a 3-level reduction for
acceptance of responsibility.
27, 2016, Perkins filed a § 2255 petition setting forth
three separate grounds for relief: (1) ineffective assistance
of counsel for failing to invoke Johnson as it relates to
Perkins's sentence under Count II; (2) denial of due
process under Johnson as it relates to calculating
Perkins's sentence under Count II; and (3) ineffective
assistance based on counsel's alleged failure to
investigate and correctly advise Perkins of his guideline
range during plea negotiations (doc. no. 1). The government
objected to Perkins's petition (doc. no. 6), but did not
address his third ground for relief.
August 17, 2016, Perkins moved to add a fourth ground to his
petition (doc. no. 7): ineffective assistance based on
counsel's alleged failure to present a constructive
possession argument. Perkins also requested in that motion
that the court appoint counsel to assist him in obtaining
relief under § 2255. The government did not respond to
court first addresses Perkins's claims for relief under
Johnson (Grounds One and Two), before turning to his separate