United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITIONER'S MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
Lepage brought this motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. Lepage argues
that his conviction should be vacated because he received
ineffective assistance from both his trial and appellate
counsel. For the reasons to be stated, the motion will be
November 5, 2013, Lepage was indicted by a federal grand jury
for Armed Bank Robbery, in violation of 18 U.S.C.
§§ 2113(a) and (d), and Possession of a Firearm in
Furtherance of a Crime of Violence, in violation of 18 U.S.C.
the investigation, Robert Wood, a customer who had witnessed
the bank robbery identified Lepage's photograph in a
police-assembled array. Wood placed his initials on the
photograph to confirm the identification. Both the government
and Lepage's trial counsel interviewed Wood prior to the
scheduled trial date.
December 19, 2013, the prosecution, pursuant to its discovery
obligations under Local Rule 116.2(b)(2)(A-G), wrote to
LePage's counsel stating in relevant part that “the
government is unaware of any information that tends to cast
doubt on the credibility or accuracy of any witness or
evidence the government anticipates calling or offering in
its case-in-chief.” Pet'r's Mot. (Dkt # 179)
Ex. 1, 9.
January 6, 2014, LePage pled guilty to both counts of the
Indictment pursuant to a plea agreement negotiated under the
binding sentence provisions of Fed. R. Crim. P. 11(c)(1)(C).
On January 20, 2014, the Assistant U.S. Attorney (AUSA) sent
an email to Lepage's counsel disclosing that during his
pretrial interview, “[Wood had] said that the initials
[on the photograph of LePage] did not look like his initials,
but he would say they were his, ” and then,
“[Wood] appeared to back away from that statement . . .
.” Pet'r's Mot. Ex. 1, 11. The AUSA stated that
he did not “know if [Wood] was joking, ” but that
Wood “ultimately . . . [had] no issue with the initials
or the identification.” Id. The AUSA also
disclosed a conversation with Wood where “he said
something about making a call(s) or doing something to get
out of the ticket, ” however “at the time, [the
prosecution] evaluated what he [had] said and . . . did not
consider his statement exculpatory.” Id.
March 28, 2014, Lepage filed a motion to withdraw his guilty
plea. The court denied the motion on June 27, 2014, and on
August 22, 2014, after accepting the plea agreement,
sentenced LePage to a term of 108 months on Count One and a
concurrent term of 84 months on Count Two. On August 25,
2014, Lepage appealed the denial of his motion to withdraw
the guilty plea. The First Circuit affirmed the district
court's decision on March 2, 2017. United States v.
Lepage, No. 14-1897 (1st Cir. Mar. 2, 2017).
support of his Section 2255 petition, Lepage alleges that his
trial counsel was ineffective in failing to pursue the issue
of the authenticity of Wood's initials on the photograph
in the array. He also faults his appellate counsel for
failing to raise the argument that the prosecution
“violated [his] right to due process under the
law” by making “affirmative
misrepresentations” in its December 19, 2013 letter.
Pet'r's Reply (Dkt # 182) at 1.
2255 is not a surrogate 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 direct
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 defects' 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). A cognizable Section 2255 claim, unless
it is constitutional or jurisdictional in nature, must reveal
“exceptional circumstances” compelling redress.
David, 134 F.3d at 474. The petitioner bears the
burden of demonstrating an entitlement to relief. Mack v.
United States, 635 F.2d 20, 26-27 (1st Cir. 1980).
claim of ineffective assistance of counsel is cognizable
under section 2255, see Rivera-Rivera v. United
States, 844 F.3d 367, 372 (1st Cir. 2016), a petitioner
raising the claim faces a “significantly higher hurdle
than would exist on direct appeal, ” United States
v. Frady, 456 U.S. 152, 166 (1982). The petitioner bears
the burden of proof. Wilder v. United States, 806
F.3d 653, 658 (1st Cir. 2015).
Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to . . . have
the Assistance of Counsel for his defence.” 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
“First, a reviewing court must assess the proficiency
of counsel's performance under prevailing professional
norms . . . . This evaluation demands a fairly tolerant
approach; after all, the Constitution pledges to an accused
an effective defense, not necessarily a perfect defense or a
successful defense . . . . The second line of inquiry . . .
entails a showing of a reasonable probability that, but for