United States District Court, District of Massachusetts
DAVID L. PLACE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
This habeas petition arises out of the March, 2011 conviction of petitioner David Place (“Place”) for selling sperm whale teeth and narwhal tusks.
In March, 2011, a federal jury in this Court convicted Place of participating in criminal conspiracies to violate the Lacey and Endangered Species Acts in violation of 18 U.S.C. § 371, engaging in the illegal trade of sperm whale teeth in violation of the Lacey Act, 16 U.S.C. §§ 3372-3373 and smuggling sperm whale teeth and narwhal tusks into the United States in violation of 18 U.S.C. § 545. He was sentenced to 33 months in prison followed by a 24-month term of supervised release. Place’s conviction was affirmed on appeal in August, 2012.
In May, 2013, Place moved to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Place claims that (1) he was deprived of his right to effective assistance of counsel both at trial and on appeal, (2) he was the victim of prosecutorial misconduct and (3) the trial judge was vindictive and should recuse himself from the instant proceedings.
Shortly thereafter, the Court found that Place had waived his attorney-client privilege and advised his former defense counsel that they should submit to an interview with the government or file affidavits addressing the issues Place raised in his petition. Place’s counsel refused to provide the information until ordered to do so. The Court acknowledged that the government would be unable to respond to Place’s claims of ineffective assistance without information from his defense counsel and ordered them to comply.
Section 2255 enables a prisoner in custody to move the court that imposed his sentence to vacate, set aside or correct the sentence if it was 1) imposed in violation of the Constitution or laws of the United States or by a court that lacked jurisdiction, 2) in excess of the maximum authorized by law or 3) otherwise subject to collateral attack. 28 U.S.C. § 2255(a); David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). The petitioner bears the burden of establishing the need for relief in each of those circumstances. David, 134 F.3d at 474. To be entitled to relief under § 2255, the petitioner must present “exceptional circumstances” that make the need for redress “evident.” Id. (citing Hill v. United States, 368 U.S. 424, 428 (1962)).
The Rules Governing Section 2255 Proceedings for the United States District Courts set forth a multi-step review process. The reviewing court first conducts a preliminary screening. The court must dismiss the motion at this stage if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4. This standard is similar to the standard governing Rule 12(b)(6) motions to dismiss under the Federal Rules of Civil Procedure. Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990). A § 2255 petition can be summarily dismissed without a hearing
if the [movant’s] allegations...cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.
If the court does not dismiss the petition at the preliminary screening stage, it must order the respondent to file an answer, motion or other response as well as additional record material. Rules 4 & 7. The court may then order an evidentiary hearing if it determines, based on its review of the filings and record, that such a hearing is warranted. Rule 8.
A § 2255 petition is procedurally defaulted and unreviewable on collateral attack when the petitioner has not presented a claim on direct appeal and has not shown either 1) “cause” for failing to do so and “actual prejudice resulting from the error” or 2) “actual innocence.” Damon v. United States, 732 F.3d 1, 4 (1st Cir. 2013) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).