United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON, District Judge.
In September, 2011, defendant James Massaro ("Massaro") was sentenced to 105 months in prison and three years of supervised release for possessing a firearm and ammunition as a convicted felon, tampering with a witness and conspiring to tamper with a witness and to obstruct an official proceeding. He contends that he received ineffective assistance of counsel during sentencing and moves to reduce his sentence or, in the alternative, to remand the matter to this Court for a hearing and resentencing, all pursuant to 28 U.S.C. § 2255. For the reasons that follow, Massaro's motion will be denied.
In December, 2008, Massaro pled guilty to Counts One through Three of a superseding indictment charging him with possessing a firearm and ammunition as a convicted felon in violation of 18 U.S.C. § 922(g)(1), tampering with a witness in violation of 18 U.S.C. § 1512(b) and conspiring to tamper with a witness and obstruct an official proceeding in violation of 18 U.S.C. § 1512(k). At sentencing, the Court classified his two prior Massachusetts convictions for assault and battery as predicate "violent felonies" for the purpose of imposing a mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and sentenced him to 180 months in prison followed by a three-year term of supervised release. The First Circuit Court of Appeals vacated that sentence and remanded for further proceedings in light of United States v. Holloway , 630 F.3d 252 (1st Cir. 2011). Holloway held that an assault and battery conviction could serve as a predicate violent offense for the purpose of imposing a mandatory minimum sentence under 18 U.S.C. § 924(e) only if the sentencing court could "ascertain that the defendant was convicted of the violent form of the offense." Id. at 262.
On remand, the Court held a status conference in June, 2011 at which it asked the probation officer to prepare a third addendum to the pre-sentence report and both parties to submit brief sentencing memoranda.
The addendum to the pre-sentence report proposed creating two count groups for the purposes of calculating a Guidelines range under U.S.S.G. § 3D1.2(b). Count Group 1 included only the felon-in-possession charge (Count 1s) whereas Count Group 2 included both the witness tampering charge (Count 2s) and the conspiracy to tamper with a witness and obstruct justice charge (Count 3s). Grouping the counts in that manner resulted in a Total Offense Level of 22. The Probation Office calculated a Guideline Sentencing Range of 77 to 96 months based upon that offense level and a Criminal History Category of V.
The government did not file written objections to the grouping of counts or the recommended guidelines range within 14 days of receiving the addendum. Instead, in its August, 2011 sentencing memorandum, the government argued that all three counts should be grouped in a single count group under U.S.S.G. § 3D1.2(c) and the offense level increased by two levels pursuant to U.S.S.G. § 3C1.1 (obstruction of justice). The government's proposed grouping method resulted in a Total Offense Level of 23.
In his sentencing memorandum, Massaro agreed with the grouping of his offenses by the Probation Office and its conclusion that his Total Offense Level was 22. His counsel sought leave to file a memorandum challenging the government's method of grouping the offenses but that motion was denied as moot following the re-sentencing.
At the re-sentencing hearing, the Court agreed with the government that all three counts should be grouped for the purpose of calculating the Guidelines Range for Massaro's sentence. It calculated a range of 84 to 105 months based upon a Total Offense Level of 23 and Criminal History Category of V and re-sentenced Massaro at the high end of that range to 105 months in custody. Massaro again appealed his sentence to the First Circuit, this time focusing upon the imposition of a four-level enhancement of his Total Offense Level pursuant to U.S.S.G. § 2K2.1(b)(6) (possession of a firearm in connection with the commission of another felony offense). The First Circuit affirmed in June, 2012 and its mandate issued in July, 2012.
In August, 2013, Massaro moved to reduce his sentence or, in the alternative, to remand the matter to this Court for a hearing and resentencing, all pursuant to 28 U.S.C. § 2255. Massaro claims that he received ineffective assistance of counsel because his attorney failed 1) to challenge the government's failure to file written objections to the grouping method in the addendum pre-sentence report within 14 days of receiving that addendum and 2) to argue that the grouping of counts in the initial pre-sentence report was "law of the case".
A. Legal Standard
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)).
A § 2255 petition is procedurally defaulted and unreviewable on collateral attack when the petitioner has not presented a claim on direct appeal, lacks cause for failing to do so and suffered no "actual prejudice resulting from the error." Damon v. United States , 732 F.3d 1, 4 (1st Cir. 2013) (citing Bousley v. United States , 523 U.S. 614, 622 (1998)). Pleading constitutionally ineffective assistance of counsel ...