United States District Court, D. Massachusetts
RICHARD G. STEARNS, District Judge.
Petitioner Roberto Carrucini filed this pro se petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Carrucini alleges that he was denied his Sixth Amendment right to effective assistance of counsel during the sentencing phase of his case. For the reasons to be stated, his petition will be denied.
Carrucini pled guilty on July 24, 2012, to a one-count indictment charging him with being a previously convicted felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922 (g)(1). On November 28, 2012, this court sentenced Carrucini to the 180-month minimum term mandated by the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The First Circuit affirmed Carrucini's conviction and sentence on February 3, 2014. First Cir. No. 12-2465, Op. entered Feb. 3, 2014 (unpublished).
In the most generous possible reading of Carrucini's pro se petition, he makes the argument that his trial counsel, Jeanne Liddy, Esq., provided ineffective assistance at five critical junctures during his sentencing. He maintains that Liddy failed: (1) to secure a downward departure from a criminal history category that substantially overstated the seriousness of his prior crimes, as provided by U.S.S.G. § 4A1.3(b)(1); (2) to provide him with a copy of his Presentence Report (PSR), as implicitly provided by Fed. R. Crim. P. 32(e)(2); (3) to persuade the court to credit him with time served awaiting disposition of his case; (4) to obtain a subtraction of a prior state court conviction from the sum of his ACCA predicate convictions; and (5) to challenge the dearth of Shepard -approved documentation establishing that his prior convictions in fact met the ACCA predicate requirements.
Section 2255 is not a substitute for direct appeal, but rather provides for post-conviction relief in four limited instances: "if the petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). "The catch-all fourth category includes only assignments of error that reveal fundamental defect[s]' which, if uncorrected, will result in a complete miscarriage of justice, ' or irregularities that are inconsistent with the rudimentary demands of fair procedure.'" Id., quoting Hill v. United States, 368 U.S. 424, 428 (1962). The petitioner bears the burden of demonstrating an entitlement to relief. Mack v. United States, 635 F.2d 20, 26-27 (1st Cir. 1980).
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to... have the Assistance of Counsel for his defense." The right to counsel includes the right to effective counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). Effective counsel does not mean perfect counsel. "Judicial scrutiny of counsel's performance must be highly deferential, " and "every effort [should] be made to eliminate the distorting effects of hindsight." Id. at 689. The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id., quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955).
Overstatement of Previous Convictions
Carrucini contends that Attorney Liddy failed to effectively argue that the seriousness of his previous convictions was overstated, and that this should entitle him to relief. However, Liddy did make this argument at sentencing, as Carrucini admits in his brief ("[Liddy said] in court that there are cases overstated."). Pet. at 5. The argument, however well made, was doomed from the outset (except to the extent it may have persuaded the court to hew to the bottom-end permissible sentence), as U.S.S.G. § 4A1.3(b)(2)(B) specifically prohibits the court from downwardly departing on this ground when sentencing under the ACCA.
Provision of the Pre-Sentencing Report
Carrucini also argues that Liddy failed to provide him with a copy of his PSR prior to sentencing. However, this argument was rejected by the First Circuit on direct appeal, and is inappropriately raised by way of this petition.
Credit for Time Served
Carrucini alleges that Liddy failed to obtain a court order recommending that he receive credit for time served awaiting sentencing. The allegation is belied by the record. It shows that Liddy did make the request, ...