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United States v. Melvin

United States District Court, D. Massachusetts

April 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES MELVIN, Defendant.

          REPORT AND RECOMMENDATION REGARDING DEFENDANT'S REQUEST FOR SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION UNDER 28 U.S.C. § 2255 (DIET. NO. 273)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On May 8, 2018, the trial judge denied James Melvin's ("Petitioner") 28 U.S.C. § 2255 petition to vacate, set aside, or correct his sentence (Dkt. No. 271).[1] Petitioner, proceeding pro se, has now moved under Fed.R.Civ.P. 15(d) to supplement his petition based on United Slates v. Townsend, 897 F.3d 66 (2d Cir. 2018) (Dkt. No. 273). The United States of America ("the government") has opposed Petitioner's motion (Dkt. No. 276). The trial judge referred the motion to this court for a report and recommendation (Dkt. No. 274). 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.

         II. Procedural Background[2]

         The procedural history of the case is pertinent to the disposition of Petitioner's motion. On May 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 the Honorable 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. 2013).

         On retrial in March 2014, a jury again found Petitioner guilty and Judge Gorton imposed a sentence of 168 months imprisonment and six years of supervised release (Dkt. Nos. 201, 206, 207, 208, 212, 225). In calculating Petitioner's sentence, the trial judge found that he was a career offender under United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 4B1.2(b) based on three predicate offenses: a 1998 criminal sale of a controlled substance in the third degree, in violation of N.Y. Penal Law § 220.39 (McKinney) (hereinafter "New York conviction"); a 2002 conviction for possession of contraband in prison; and 2005 federal convictions for conspiring to possess narcotics with intent to distribute and conspiring to commit extortion (Sent. Tr.: 11-12).

         The First Circuit affirmed Petitioner's 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).

         On 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. After the government filed its opposition and Petitioner replied, Judge Gorton referred the motion to the undersigned for a report and recommendation (Dkt. Nos. 259, 260, 264). See Rule 5, Rules Governing Section 2255 Proceedings. The court issued its report recommending that Petitioner's motion be denied and that no certificate of appealability should -t issue (Dkt. No. 270). Judge Gordon adopted the report and recommendation on May 8, 2018 (Dkt. No. at 271). See United States v. Melvin, No. 10-cr-30017-NMG, 2018 WL 2134028, at *16 (D. Mass. May 8, 2018). Petitioner filed the instant motion to supplement his § 2255 petition on October 29, 2018 (Dkt. No. 273). The government's opposition to Petitioner's motion contends that the motion is barred by procedural hurdles and, to the extent the court reaches the merits of Petitioner's claim, it should not succeed (Dkt. No. at 276).

         III. ANALYSIS

         A. Legal Standards

         A petitioner is entitled to relief under § 2255 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") if the petitioner's sentence (1) "was imposed in violation of the Constitution or laws of the United States;" or (2) was imposed by a court that lacked jurisdiction; or (3) "was in excess of the maximum authorized by law;" or (4) was "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). See 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 burden is on the Petitioner to make out a case for section 2255 relief." Id. (citing Mack v. United States, 635 F.2d 20, 26-27 (1st Cir. 1980)). "Where, as here, a petitioner is acting pro se, his petition must be 'liberally construed ... [and] a pro 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) (alteration in original) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Petitioner seeks leave to supplement his previous § 2255 petition to assert, based on Townsend, that he is entitled to correction of his sentence because his New York conviction does not qualify as a predicate controlled substance offense that qualified him as a career offender under § 4B1.2(b) of the Guidelines (Dkt No. 273 at 1).

The relevant sentencing guideline instructs that a defendant qualifies as a career offender if (i) he is 18 years old or older at the time he commits the offense of conviction; (ii) that offense is a crime of violence or a controlled substance offense; and (iii) he has at least two prior felony convictions for crimes of violence or controlled substance offenses.

United States v. Willings, 588 F.3d 56, 57 (1st Cir. 2009) (citing U.S. SENTENCING GUIDELINES MANUAL § 4B 1.1(a) (U.S. SENTENCING COMM'N 2016)). As used in § 4B1.1(a), "controlled substance offense"

means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits [1] the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or [2] the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(b).

         B. Procedural Barriers

         Although a "request for habeas relief challenging the validity of... career offender enhancement under the Sentencing Guidelines falls squarely under § 2255," Alexander v. Spaulding, Civil Action No. 18-cv-11100, 2019 WL 1027925, at *3 (D. Mass. Mar. 4, 2019), the government cites the following procedural roadblocks that bar the court from granting Petitioner's motion: (1) the motion is not a supplemental pleading under Fed.R.Civ.P. 15(d) but, instead, is an impermissible second § 2255 petition over which the court lacks jurisdiction; (2) to the extent the court has jurisdiction to consider Petitioner's motion, the ground on which it is based was decided by the Court of Appeals for the First Circuit on the appeal of his conviction and, therefore, has become the law of the circuit; (3) to the extent the principles of the law of the circuit doctrine do not bar the claim, it is subject to procedural default; and (4) if the motion is viewed as a motion to alter or amend the § 2255 judgment under Fed.R.Civ.P. 59(e), the court lacks jurisdiction to entertain the motion because it was filed late. The court will address each of the government's procedural arguments.

         1. The Petitioner's motion does not qualify as a supplemental pleading under Rule 15(d) but, instead, is a second or successive § 2255 motion which should be dismissed for want of jurisdiction.

         Petitioner relies on Fed.R.Civ.P. 15(d) as the source of his motion (Dkt. No. 273). "Federal Rule of Civil Procedure 15 governs amendments to habeas petitions in a § 2255 proceeding." United States v. Ciampi, 419 F.3d 20, 23 (1st Cir. 2005) (citing United States v. Duffus, 174 F.3d 333, 336 (3d Cir. 1999)). Rule 15(d) permits a court to grant "a party [leave] to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed.R.Civ.P. 15(d). Although Plaintiff his original petition on January 12, 2017 and Townsend, the case upon which he now relies, was decided by the Court of Appeals for the Second Circuit on July 23, 2018, the trial judge issued the judgment denying the original § 2255 petition on May 8, 2018, before the Townsend decision was issued (Diet. Nos. 247, 271). See Townsend, 897 F.3d at 66; Melvin, 2018 WL 2134028, at *1. Inasmuch as Judge Gorton denied Petitioner's initial § 2255 petition, did not issue a certificate of appealability, and there is no appeal currently pending, the denial of Petitioner's initial § 2255 petition was a final adjudication (Dkt. Nos. 270, 271). See Melvin, 2018 WL 2134028, at *16; Santiago-Vazquez v. United States, CIV. No. 06-1987(PG), Crim. No. 97-071(PG), 2010 WL 2207750, at *1 (D.P.R. May 28, 2010); 28 U.S.C. §§ 2253(c)(1)(B), 2255(d); Rule 11(a), Rules Governing Section 2255 Proceedings. Supplementation of a previously adjudicated § 2255 petition is not permitted. See United States v. Hames, 431 Fed.Appx. 846, 847 (11th Cir. 2011) (per curiam) (unpublished) ("[A] motion under § 2255 can only be amended under Rule 15 before judgment is issued; Rule 15 has no post-judgment application.") (citing Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1344-45 (11th Cir. 2010)); Whiting v. United States, No. 97-2033, 1998 WL 1281294, at *2 n.1 (1st Cir. June 26, 1998) (unpublished table decision) (affirming the district court's dismissal of a post-adjudication motion to amend a § 2255 petition as a successive petition). The motion's caption as a request to "supplement" the original petition does not alter this determination (Dkt. No. 273). See United States v. Gwathney, Nos. CV 07-0899 WJ/LAM, CR 04-1553 WJ, 2009 WL 10648259, at *1 (D.N.M. Sept. 16, 2009) ("The title given to a motion by the movant is not dispositive in determining whether the motion is a second or successive § 2255 motion.") (citing United States v. Nelson, 465 F.3d 1145, 1147-49 (10th Cir. 2006)).

         As a second § 2255 petition, Petitioner's motion should be denied because Petitioner failed to comply with the procedural requirements mandated by the AEDPA. "[A] petitioner may not file a second or successive petition under § 2255 without first obtaining permission from the court of appeals." Nascimento v. United States, Cr. No. 03-10329-PBS, 2012 WL 1004316, at *3 (D. Mass. Mar. 22, 2012), appeal docketed, No. 13-8021 (1st Cir. June 28, 2013) (citing 28 U.S.C. § 2255(a), (e), (h)). See also 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive [§ 2255 petition] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."); Rule 9, Rules Governing Section 2255 Proceedings ("Before presenting a second or ...


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