United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S
MOTION UNDER 28 U.S.C. S 2255 TO VACATE. SET ASIDE. OR
CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (Dkt. No.
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
jury found James Melvin ("Petitioner") guilty of
possession with intent to distribute and distribution of
cocaine base in violation of 21 U.S.C. § 841(a)(1), he
was sentenced to serve 168 months imprisonment followed by
six years of supervised release (Dkt. Nos. 212,
225). Petitioner, proceeding pro se,
has now moved under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence (Dkt. No. 247). The United
States of America ("the government") has opposed
Petitioner's § 2255 motion and Petitioner has
responded (Dkt. Nos. 259, 260). The trial judge referred the
motion to this court for a report and recommendation (Dkt.
No. 261). See 28 U.S.C. §636(b)(1)(b);
Fed.R.Civ.P. 72; Rule 10, Rules Governing Section 2255
Proceedings. For the reasons detailed below, the undersigned
recommends that Defendant's motion be DENIED.
conviction arose from his sale of approximately 11.5 grams of
crack cocaine to a government informant in the parking lot of
Frank's Package Store in Springfield on February 19,
2010. The government informant, Robert K. Williams, Jr.
("Williams"), began working as an informant for the
Massachusetts State Police in September 2009 (Tr. 1: 187).
His undercover work for the Federal Bureau of Investigation
("FBI") commenced two months later in November 2009
(Tr. 1: 187-88). At approximately 2:00 p.m. on February 19,
2010, FBI Special Agent ("SA") Jeffrey Lawrence,
the supervisor of the federal task force conducting the
undercover operation, directed Williams to call the
investigation's target, Anthony Hook ("Foo"),
to set up a controlled purchase of crack cocaine (Tr. 1: 196,
198; Tr. 2: 23, 155-56). During the recorded telephone call,
Hook agreed to sell Williams "three and a teenth"
of crack cocaine for $500 (Tr. 2: 165-66). Hook then handed
the telephone to a person who Hook described as "one of
my young boys, my runner, my peoples" (Tr. 2: 167). This
man, who Williams later identified as Petitioner, directed
Williams to meet him in the parking lot of Frank's
Package Store and indicated that he would be wearing a black
jacket (Tr. 1:202-03; Tr. 2: 166).
the call, SA Lawrence supplied Williams with $500 and a
digital scale (Tr. 1: 197, 200). Another member of the task
force, Massachusetts State Police Sergeant Thomas Fitzgerald,
searched Williams' person and his vehicle, a blue Chevy
Blazer, for money and contraband with negative results (Tr.
1:201-02; Tr. 3: 79, 81-82). Williams was outfitted with an
audio transmitter, which permitted the surveillance officers
to hear his conversations but did not record, and two digital
cameras, which did record (Tr. 1: 199). SA Lawrence,
Sergeant Fitzgerald, and two other officers then followed
Williams to the package store in a separate vehicle (Tr. 1:
202, 205). Williams stopped for gas along the way (Tr. 1:
204). He was alone in the gas station's store while he
paid for gas (Tr. 2: 28-30; Tr. 3: 55-56).
Williams arrived in the package store's parking lot,
Petitioner entered the front passenger's seat of his
vehicle (Tr. 2:155). According to Williams' testimony,
the video recording, and the audio transmission, Petitioner
reached into his pants and pulled out a plastic bag
containing crack cocaine, and said, "'We got three
balls and a teenth'" (Tr. 2: 162, 174). Williams
attempted to weigh the narcotics on the digital scale that he
placed on the console between the front seats, but the scale
did not work (Tr. 2:174-75). According to the audio
recording, Petitioner said, "That shit is always on
point, you might have extra" (Tr. 2: 175). During the
conversation, Petitioner counted four individually wrapped
items that were contained in a larger plastic baggie while
saying, '"You got two of these is 7, that's ten
and a half, IT... [you have] '12 here'" (Tr. 1:
211-12; Tr. 2: 78-79, 175-76; Tr. 3:173). According to
Williams, Petitioner was indicating that he was giving him
twelve grams of crack cocaine (Tr. 2: 175-76). Williams then
gave Petitioner $500 and Petitioner left Williams'
vehicle (Tr. 2: 177). Notwithstanding SA Lawrence's
instruction to Williams regarding the importance of recording
Petitioner handing over the drugs, the "actual
exchange" of drugs for cash was not recorded by the
digital cameras that Williams was wearing (Tr. 2: 22; Tr. 3:
Williams began to leave the parking lot, an acquaintance,
James Clinton, was among a group of people who walked in
front of Williams' vehicle (Tr. 2:73, 178). Williams
called out to Clinton who approached Williams and made a joke
about his vehicle (Tr. 2:177; Tr. 3: 50-52). Williams
testified that he rolled down the driver's side window
with his left hand, reached out of the window with his right
hand, and "slapped [Clinton] five" (Tr. 2: 74,
183-84; Tr. 3: 52). Williams denied that he was holding
anything when his hand met Clinton's (Tr. 2: 184).
surveillance officers followed Williams to the predetermined
debriefing location where he turned over 11.5 grams of crack
cocaine to SA Lawrence (Tr. 1: 207, 209, 210; Tr. 2: 96,
185). Sergeant Fitzgerald did not recover any other narcotics
or money when he searched Williams' person and vehicle
(Tr. 1:209, 210; Tr. 3: 83).
testified in his defense that, on February 19, 2010, Hooks
provided him with twelve grams, or approximately one-half
ounce, of high grade hydroponic marijuana, which he exchanged
with Williams for $500 in Williams' vehicle in
Frank's Package Store parking lot (Tr. 3: 124-27, 133,
144-45, 147, 154-55). Petitioner testified that the marijuana
was a light green substance, but the sunlight made it appear
to be white on the video recordings (Tr. 3:127, 155, 157,
167). For comparison, Petitioner pointed to the black garbage
bag the covered Williams' front passenger side window,
which he alleged appeared gray in the video recordings (Tr.
3: 127). Petitioner also told the jury that the white or
off-white ball that he was seen holding in the video was the
empty, crumpled, larger plastic sandwich bag from which
Williams had removed the smaller bags of marijuana in order
to weigh them (Tr. 3:138-39, 141-44, 146-47, 161-62).
Petitioner's representation to Williams regarding the
narcotics "always [being] on point, " Petitioner
testified that this was the only time he made a delivery for
Hooks (Tr. 3* 135-36). However, he stated that he previously
had served Hooks as a lookout (Tr. 3: 130).
20, 2010, a grand jury sitting in the United States District
Court for the District of Massachusetts returned a single
count indictment charging Petitioner with distributing
cocaine base or possessing cocaine base with intent to
distribute (Dkt. No. 2). See 21 U.S.C. §
841(a)(1). The government filed an information pursuant to 21
U.S.C. § 851 before Petitioner's first trial, which
commenced on November 28, 2011 before Judge Nathaniel M.
Gorton and a jury (Dkt. No. 97). After the jury found
Petitioner guilty, Judge Gorton sentenced him to 180 months
in prison and six years of supervised release (Dkt. Nos. Ill.
127). On September 17, 2013, Petitioner's conviction was
vacated and the case was remanded for a new trial. See
United States v. Melvin, 730 F.3d 29, 40 (1st Cir.
retrial in March 2014, a jury again found Petitioner guilty
and Judge Gorton sentenced him to 168 months of imprisonment
and six years of supervised release (Dkt. Nos. 201, 206, 207,
208, 212, 225). The First Circuit affirmed the conviction,
see United States v. Melvin, 628 Fed.Appx. 774, 778
(1st Cir. 2015), and the Supreme Court denied the petition
for a writ of certiorari on February 29, 2016 (Dkt. No. 246).
See Melvin v. United States, 136 S.Ct. 1236(2016).
January 12, 2017, Petitioner moved to vacate, set aside or
correct the sentence pursuant to 28 U.S.C. § 2255 (Dkt.
No. 247). Judge Gorton ordered the government to respond
(Dkt. No. 248). See 28 U.S.C. § 2255(b); Rules
4(b) & 5(a), Rules Governing Section 2255 Proceedings.
The government filed its opposition and Petitioner replied
(Dkt. Nos. 259, 260). See Rule 5, Rules Governing
Section 2255 Proceedings.
claims that his trial counsel at both trials, Attorney
William O'Neil ("Attorney O'Neil"),
rendered ineffective assistance at the second trial by
failing to: (1) subpoena James Clinton to testify that
Williams transferred marijuana to him in the parking lot of
Frank's Package Store on February 19, 2010; (2) withdraw
from Petitioner's case due to a conflict of interest; and
(3) effectively communicate the government's plea offer
(Dkt. No. 247 at 4-5). In addition, Petitioner moves to
correct his sentence based on the Board of Prisons'
("BOP") alleged representation that
Petitioner's 168 month sentence would run consecutive to
a 51 month sentence imposed by the United States District
Court for the Southern District of New York for violating
conditions of supervised release (id. at 5).
28 U.S.C. $ 2255
2255 "provides for post-conviction relief in four
instances, namely, 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) (citing Hill v. United States,
368 U.S. 424, 426-27 (1962)). "The fourth category
includes only 'assignments of error that reveal
"fundamental defects" which, if uncorrected, will
"result in a complete miscarriage of justice, " or
irregularities that are "inconsistent with the
rudimentary demands of fair procedure.'""
United States v. Mahan, Criminal No. 10-10073-NMG,
2015 WL 4762652, at *4 (D. Mass. Aug. 11, 2015) (quoting
David, 134 F.3d at 474). "[Petitioner] bears
the burden of establishing the need for section 2255
relief." Id. "Where, as here, a petitioner
is acting pro se, his petition must be
'liberally construed ... [and] zpro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.'" United States v. Robinson, 227
F.Supp.3d 141, 146 (D. Mass. 2016) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)).
Petitioner has not requested an evidentiary hearing, §
2255(b) states that the court "shall... grant a prompt
hearing" on a § 2255 motion "[u]nless the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief." 28
U.S.C. § 2255(b). "The language of section 2255 ...
'does not strip the [Court] of all discretion to exercise
[its] common sense."' Kiley v. United
States, 260 F.Supp.2d 248, 258 (D. Mass. 2003)
(alteration in original) (quoting Machibroda v. United
States, 368 U.S. 487, 495 (1962)). The First Circuit has
held that "[a] prisoner who invokes section 2255 is not
entitled to an evidentiary hearing as a matter of
right." David, 134 F.3d at 477 (citing
United States v. McGill, 11 F.3d 223, 225 (1st Cir.
1993)). Petitioner has the burden to show, by a preponderance
of the evidence, that he is entitled to one. See
Moreno-Morales v. United States, 334 F.3d 140, 145 (1st
Cir. 2003) ("Evidentiary hearings on § 2255
petitions are the exception, not the norm, and there is a
heavy burden on the petitioner to demonstrate that an
evidentiary hearing is warranted."); David,
district court properly may forgo [a hearing] when (1) the
motion is inadequate on its face, or (2) the movant's
allegations, even if true, do not entitle him to relief, or
(3) the movant's allegations 'need not be accepted as
true because they state conclusions instead of facts,
contradict the record, or are "inherently
incredible.'"" David, 134 F.3d at 477
(quoting McGill, 11 F.3d at 225-26); see also
Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007),
abrogated on other grounds by Weaver v.
Massachusetts, 137 S.Ct. 1899 (2017); Rule 4(b), Rules
Governing Section 2255 Proceedings. To determine whether a
petitioner is entitled to a hearing, the court reviews the
"expanded record, " which includes "the
answer, any transcripts and records of prior proceedings,
" and additional submitted materials, including
affidavits. Rules 7 & 8(a), Rules Governing Section 2255
Proceedings. See Miller v. United States, 564 F.2d
103, 105 (1st Cir. 1977) ("[T]he district court may make
its preliminary assessment of the motion's merits on an
expanded record that may include 'in an appropriate case,
even affidavits."') (quoting Raines v. Unijed
States, 423 F.2d 526, 530 (4th Cir. 1970)).
"However, material issues of fact may not be resolved
against the petitioner solely by relying on exparte,
sworn or unsworn, statements of the government or defense
counsel." United States v. Butt, 731 F.2d 75,
77-78 (1st Cir. 1984) (internal citations omitted).
"Affidavits may assist only in determining if there is a
genuine issue of fact to resolve." Miller, 564
F.2d at 106 (citing Blac Hedge v. Allison, 431 U.S.
63, 80 (1977)). "An evidentiary hearing is required if
the records and files in the case, or an expanded record,
cannot conclusively resolve substantial issues of material
fact, 'and when the allegations made, if true, would
require relief.'" Butt, 731 F.2d at 78
(quoting United States v. Fournier, 594 F.2d 276,
279 (1st Cir. 1979)). See Carpenter v. United
States, 478 F.Supp.2d 205, 214 (D.R.I. 2007)
("Genuine issues of material fact may not be resolved
without a hearing......").
Ineffective Assistance of Counsel
all criminal prosecutions, the accused shall enjoy the right
to ... the Assistance of Counsel for his defence." U.S.
Const, amend. VI. "The touchstone for determining
whether an attorney's performance falls below the
constitutional norm is whether counsel has brought 'to
bear such skill and knowledge as will render the trial a
reliable adversarial testing process.'" Scarpa
v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994) (quoting
Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Strickland, the Supreme Court developed a two prong
test to determine claims of ineffective assistance of
counsel. See Mahan, 2015 WL 4762652, at *4.
[T]o establish counsel ineffectiveness, a defendant must
prove that (1) "counsel's performance was
deficient... that counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" and (2) - "the
deficient performance prejudiced the defense... that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
United States v. Guerrero, Criminal No.
08-10197-LTS, 2015 WL 6958071, at *3 (D. Mass. Nov. 9, 2015)
(quoting Strickland, 466 U.S. at 687). A
petitioner's failure to make the required showing on
either prong "defeats the ineffectiveness claim."
Strickland, 466 U.S. at 700.
the first prong "a [petitioner] must show that, 'in
light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally
competent assistance.'" Rosado v. Allen,
482 F.Supp.2d 94, 101 (D. Mass. 2007) (quoting
Strickland, 466 U.S. at 690).
evaluation of counsel's performance 'demands a fairly
tolerant approach.'" Id. (quoting
Scarpa, 38 F.3d at 8). "'[T]actical
decisions, whether wise or unwise, successful or
unsuccessful, cannot ordinarily form the basis of a claim of
ineffective assistance.'" Murchu v. United
States, 926 F.2d 50, 58 (1st Cir. 1991) (alteration in
original) (quoting United States v. Ortiz Oliveras,
717 F.2d 1, 3 (1st Cir. 1983)). See United States v.
Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991), Because
"[t]here is a 'strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance, '" Smullen v. United
States, 94 F.3d 20, 23 (1st Cir. 1996) (quoting
Strickland, 466 U.S. at 689), "the burden that
[a petitioner] faces when filing a section 2255 motion is
unquestionably heavy......" Mahan, 2015 WL
4762652, at *5.
second Strickland prong requires a petitioner to
establish that counsel's subpar performance was
prejudicial to the defense. See Strickland, 466 U.S.
at 692. The prejudice prong "entails 'a showing of a
"reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different."'" Rosado, 482
F.Supp.2d at 101 (quoting Scarpa, 38 F.3d at 8).
See Padilla v. Kentucky, 559 U.S. 356, 366 (2010).
Put another way, '"[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no
effect on the judgment."' Argencourt v. United
States, 78 F.3d 14, 16 (1st Cir. 1996) (quoting
Strickland, 466 U.S. at 691).
Counsel's Failure to Subpoena James Clinton to
first claims that he was deprived of his Sixth Amendment
right to compulsory process for obtaining witnesses to
testify on his behalf by Attorney O'Neil's failure to
subpoena James Clinton (Dkt. No. 247 at 4). See U.S.
Const, amend. VI ("In all criminal prosecutions, the
accused shall enjoy the right... to have compulsory process
for obtaining witnesses in his favor."); Bowling v.
Vose, 3 F.3d 559, 561 (1st Cir. 1993) (a criminal
defendant's "[e]xercise of the right [to compulsory
process] assists the adversary process in its truth-seeking
function by ensuring that the trial court hears the full
array of admissible facts pertinent to the case."). At
trial, the parties agreed that the video recording showed
Clinton approaching Williams in his vehicle and touching
Williams' hand immediately after Petitioner exited from
the vehicle and Williams began driving out of the parking
lot. The government claimed that Petitioner had sold crack
cocaine to Williams and that he did not transfer anything to
Clinton. Instead, the two men just "slapped five."
According to the defense theory, however, Williams handed
Clinton the marijuana that he had just purchased from
Petitioner, which explained why Sergeant Fitzgerald did not
find marijuana on Williams' person or in his vehicle
after the transaction. Petitioner asserts that his Sixth
Amendment right was violated by Attorney O'Neil's
failure to subpoena Clinton to testify because Clinton's
testimony was necessary to corroborate the defense theory
that Petitioner sold Williams marijuana (Dkt. No. 247 at 4;
Dkt. No. 260 at 2-4). See Bowling, 3 F.3dat561.
20, 2013, between Petitioner's first and second trials,
Clinton signed an "Affidavit" stating that a
"friend" had shown him a video recording of
Frank's Package Store's parking lot on February 19,
2010 in which he appeared (Dkt. No. 247-1 at
According to Clinton's affidavit, Williams called him
over to his vehicle and gave him marijuana on that date
(id). Petitioner states that he showed Clinton's
affidavit to Attorney O'Neil before the second trial
(Dkt. No. 247 at 4).
O'Neil submitted a sworn affidavit confirming that he
received Clinton's affidavit before Petitioner's
second trial (Dkt. No. 259-1 ¶ 9). Attorney
O'Neil states that he spoke to Clinton by telephone on
November 5, 2013 "to confirm that he had executed the
affidavit and to confirm his willingness to cooperate
..." (id.). On January 8, 2014, after plea
negotiations had broken down and it appeared that
Petitioner's case would proceed to trial, Attorney
O'Neil and his investigator met with Clinton in Attorney
O'Neil's office for approximately fifty minutes
(id ¶¶ 10, 11). They reviewed
Clinton's affidavit and the videotape of Frank's
parking lot showing him and Williams (id. at ¶
11). Clinton again indicated that he had signed the
affidavit, but was unable to confirm its information due to
his "poor memory" that he attributed, in part, to
"his regular substance abuse" (id.). At a
meeting with Petitioner two days later, Attorney O'Neil
recounted his meeting with Clinton and told Petitioner that
he was not planning to call Clinton as a witness because he
would not be "helpful" (id. ¶ 12).
Attorney O'Neil did not discuss Clinton with Petitioner
again until shortly before the trial in March 2014
the government alerted the trial judge to the possibility
that Clinton would be called as a defense witness who might
invoke his Fifth Amendment privilege against
self-incrimination because the judge discussed the issue with
counsel at the pretrial conference on March 18, 2014 and
expressed his concern that he might need to appoint counsel
"on short notice" and might be required "to
conduct a voir dire outside the presence of the jury in order
to determine if [Clinton] intends to plead the Fifth
Amendment on the stand" (PTC Tr.:
5-6).Attorney O'Neil responded by informing
the court that he did not anticipate calling Clinton as a
witness, but indicated "[t]here may be an outside chance
that would change" (PTC Tr.: 6).
to Attorney O'Neil, he received a message from Clinton
three days later, on March 21, 2014, and returned the call
(259-1 ¶ 13). Clinton told Attorney O'Neil that
Petitioner had contacted him and "he wanted to
help" (id.). Consequently, Attorney O'Neil
and his investigator met with Clinton on March 22, 2014
(id. ¶ 14). According to Attorney
O'Neil's affidavit, "Clinton reiterated his
desire to help [Petitioner] but he again described his poor
memory and the difficulty he was having in recalling the
events of February 19, 2010 when he had contact with ...
Williams in the Frank's Package Store parking
lot-----Clinton was unable to confirm ... that he would be
able to testify as to the facts stated in his affidavit"
(id.). Based on Attorney O'Neil's two
interviews of Clinton and his theory of defense, Attorney
O'Neil concluded that he would not call Clinton as a