United States District Court, D. New Hampshire
Peter J. Apicelli
v.
United States of America
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 ...