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Perkins v. United States

United States District Court, D. New Hampshire

February 14, 2017

Roger Perkins
v.
United States of America Opinion No. 2017 DNH 027

          ORDER

          LANDYA MCCAFFERTY, UNITED STATES DISTRICT JUDGE

         Roger Perkins, proceeding pro se, moves under 28 U.S.C. § 2255 for relief 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). In a previous order (doc. no. 10), the court dismissed two of his claims. Perkins further requests that the court appoint counsel to assist him in obtaining relief.

         Standard of Review

         Under § 2255, a federal prisoner may ask the court to vacate, set aside, or correct a sentence that “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). The burden of proof is on the petitioner. Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015) (citing David v. United States, 134 F.3d 470, 474 (1st Cir. 1998)). Once a prisoner requests relief under § 2255, the district court must grant an evidentiary hearing unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007). If the district court does not hold an evidentiary hearing, the allegations set forth in the petition are taken as true “unless those allegations are merely conclusory, contradicted by the record, or inherently incredible.” Owens, 483 F.3d at 57 (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002)). Because Perkins is proceeding pro se, the court construes his petition liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

         Background

         On March 25, 2014, members of the Laconia Police Department searched a residence that Perkins and co-conspirator Windyann Plunkett leased together in Laconia, New Hampshire. Perkins was under investigation for drug trafficking in the Laconia area. According to the stipulated facts in the plea agreement, officers found drugs and four firearms during their search of Perkins's residence. Two firearms were located on a closet shelf in a back bedroom, and two firearms were discovered in a safe that officers seized from the same bedroom closet. Plunkett later admitted that the firearms located in the safe belonged to Perkins. Cr. doc. no. 47 at 6.[1] After his arrest, in a recorded telephone call from jail, Perkins admitted that all four firearms were his. Id. at 7.[2]

         On July 21, 2015, 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). Perkins entered a plea agreement for a binding term of imprisonment of 87 months on Counts I and II and 60 months on Count III, to be served consecutively, for a total of 147 months. Id. at 9.

         On November 2, 2015, the court sentenced Perkins. The presentence report (“PSR”) grouped Counts I and II for the purposes of sentencing and applied the higher offense level (Count I).[3] Based on a total offense level of 21 and a criminal history category of III, Perkins's guideline sentencing range for the grouped counts was 46-57 months. Cr. doc. no. 62 at 24. Count I, however, carried a mandatory minimum sentence of five years, so Perkins's guideline term of imprisonment for the grouped counts was 60 months. Id. The PSR 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 statutory minimum sentence of five years on Count III ran consecutive to any other sentence imposed. Therefore, Perkins's total guideline sentence was 120 months: 60 months on Counts I and II and a consecutive 60-month sentence on Count III. Cr. doc. no. 74 at 5.

         However, Perkins had agreed to a stipulated sentence of 147 months imprisonment: 87 months on Counts I and II and 60 months on Count III. At the sentencing hearing, Perkins's trial counsel explained that he negotiated a sentence of 87 months on Counts I and II because Perkins had a prior state felony drug conviction. See Id. at 6. If the government had properly established Perkins's prior felony drug conviction, pursuant to 21 U.S.C. § 851, the mandatory minimum sentence on Count I would have increased from 60 months to 120 months. See 21 U.S.C. § 841(b)(1)(B). This would have increased Perkins's total mandatory minimum sentence to 180 months. Thus, Perkins agreed to an above-guideline sentence of 147 months to prevent the government from filing a § 851 enhancement. The court granted the parties' joint motion for an upward variance and sentenced Perkins to 147 months, in accordance with the plea agreement.

         On June 27, 2016, Perkins filed a § 2255 petition setting forth three grounds for relief. Doc. no. 1. Perkins later moved for leave to add a fourth ground to his petition (doc. no. 7), which the court granted. The court subsequently dismissed two of the claims. Doc. no. 10. Perkins's remaining claims are: (1) ineffective assistance based on counsel's failure to correctly advise Perkins of his guideline sentencing range during plea negotiations, and (2) ineffective assistance based on counsel's failure to inform Perkins of the elements of constructive possession of a firearm. Perkins also requests that the court appoint counsel to assist him in obtaining relief under § 2255. Doc. no. 7. On November 22, 2016, the court ordered the United States Attorney to file an answer to Perkins's two remaining claims. Doc. no. 10. On December 20, 2016, the government filed its response. Doc. no. 11.[4]

         Discussion

         Perkins's remaining grounds for relief both raise ineffective-assistance-of-counsel claims. When a § 2255 petition is based on ineffective assistance of counsel, the petitioner “must demonstrate both: (1) that ‘counsel's performance was deficient, ' meaning that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment'; and (2) ‘that the deficient performance prejudiced the defense.'” United States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) (“[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.”).

         Under the deficiency prong, the petitioner “must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” and the petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitted). Under the prejudice prong, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Failure to satisfy either the deficiency or prejudice prong defeats an ineffective-assistance-of-counsel claim. Id. at 700.

         I. Incorrectly Estimating the Guideline ...


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