Apicelli v. United States

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge

         Peter Apicelli, proceeding pro se, seeks relief pursuant to 28 U.S.C. § 2255 from his conviction and sentence for manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1).^[1]In support, he challenges the prosecution of the charge against him in federal rather than state court and argues that the court was required to abstain from hearing the case. He also argues that his trial counsel was ineffective for failing to raise abstention.

         Standard of Review

         A prisoner in federal custody may move in the court that imposed the sentence “to vacate, set aside or correct the sentence.”^[2] § 2255(a). “The clerk must promptly forward the motion to the judge who conducted the trial and imposed sentence.”^[3] Rule 4(a), Rules Governing Section 2255 Proceedings. The judge must then examine the motion, and “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” Rule 4(b).

         “Summary dismissal of a § 2255 [motion] is appropriate if it plainly appears from the face of the motion that the movant is not entitled to relief.” Carey v. United States, 50 F.3d 1097, 1098 (1st Cir. 1995). That is, a § 2255 motion must be summarily dismissed if the “allegations, accepted as true, would not entitle the [moving party] to relief.” Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990). Further, a section 2255 motion “is subject to dismissal, without an evidentiary hearing, if the grounds for relief either are not cognizable under section 2255 or amount to mere bald assertions without sufficiently particular and supportive allegations of fact.” Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992).

         Discussion

         In this case, Apicelli raises no claim that provides grounds for relief under § 2255. His claims are procedurally defaulted and meritless on their face.

         A. Abstention

         Apicelli was initially investigated by local and state authorities for growing marijuana, and Apicelli was charged in state court. The United States Attorney took over the case when the state prosecutor realized that a conflict of interest existed in state court. Apicelli then was charged in federal court with manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). Apicelli was found guilty and was sentenced to one year and one day in prison, to be followed by two years of supervised release.

         Apicelli argues that this court should have abstained from hearing the federal charge against him. Apicelli did not raise that claim in this court or on appeal. United States v. Apicelli, 839 F.3d 75 (1st Cir. 2016). Therefore, the claim was procedurally defaulted, and he has not shown cause for that omission, resulting prejudice, or actual innocence.^[4] Sotinon v. United States, 617 F.3d 27, 32 (1st Cir. 2010).

         In addition, Apicelli is wrong on the merits of the claim. None of the abstention doctrines he cites applies in the circumstances of this case. See Nazario-Lugo v. Caribevision Holdings, Inc., 670 F.3d 109, 114-15 (1st Cir. 2012) (discussing abstention doctrines and citing cases).

         B. Fifth and Fourteenth Amendments

         Apicelli argues that his sentence must be vacated because, he contends, he was denied a hearing on the issue of a conflict of interest in state court and he should have been prosecuted in state court instead of federal court. He contends that the lack of a hearing and prosecution in federal court violated his Fifth and Fourteenth Amendment rights to due process and equal protection. Because Apicelli did not raise that claim here or on appeal, it is procedurally defaulted and he has not shown cause, prejudice, or actual innocence.^[5]

         In addition, as Apicelli acknowledges, a hearing was held on March 26, 2015, where the Assistant United States Attorney explained the conflict of interest issue to the satisfaction of the court and Apicelli's counsel. United States v. Apicelli, 14-cr-12-JD, doc. no. 32, at *4 (D.N.H. Mar. 31, 2015). Further, Apicelli has not shown that any due process or equal protection ...