Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perkins v. United States

United States District Court, D. New Hampshire

November 22, 2016

Roger Perkins
v.
United States of America Opinion No. 2016 DNH 210

          Roger Perkins, pro se Seth R. Aframe, Esq.

          ORDER

          Landya McCafferty United States District Judge

         Roger 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 claims.

         Standard of Review

         A 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).

         Background

         In 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.

         The 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.[1] 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.

         The 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.

         On June 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.

         On 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 Perkins's motion.

         Discussion

         The court first addresses Perkins's claims for relief under Johnson (Grounds One and Two), before turning to his separate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.