United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY (Docket No. 248)
TIMOTHY S. HILLMAN, DISTRICT JUDGE
McForbes (“Defendant”) was convicted after a jury
trial on two counts of being a felon in possession of a
firearm. As he had three prior Massachusetts drug
distribution convictions, he was sentenced as an armed career
criminal to 180 months, the statutory minimum. He now moves
to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 based on two grounds. First, he contends
that his prior state court convictions do not qualify as ACCA
predicate convictions. Second, he argues that his counsel was
ineffective for failing to move to exclude audio recordings
made by the digital recorder carried by the cooperating
witness. For the reasons stated below, Defendant's motion
(Docket No. 248) is denied.
2255 provides for post-conviction relief in four 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)). Therefore, unless it is constitutional
or jurisdictional in nature, a Section 2255 claim must show
“exceptional circumstances” that warrant redress.
David, 134 F.3d at 474. The petitioner has the
burden of showing an entitlement to relief. Mack v.
United States, 635 F.2d 20, 26-27 (1st Cir. 1980).
first contends that his prior state court convictions do not
qualify as ACCA predicate convictions because the state
statute includes the verb “dispense” while that
word is not found in the ACCA's definition of a serious
drug offense. Compare Mass. Gen. Laws ch. 94C,
§ 32A with 18 U.S.C. § 924(e)(2)(A). The
First Circuit rejected this argument on direct appeal and
reasoned, “Defendant does not point to any precedent
suggesting that the term ‘dispenses' should not be
viewed as a synonym for ‘distributes' or that the
presence of the word in the state statute should matter for
ACCA purposes.” United States v. McForbes, No.
16-1281, 2018 WL 7959183, at *1 (1st Cir. Nov. 26, 2018). I
similarly reject Defendant's contention.
next argues that his counsel was ineffective for failing to
move to exclude audio recordings made by the digital recorder
carried by the cooperating witness. According to Defendant,
the case agent and/or prosecutor tampered with the original
recording and that unintelligible portions contained evidence
favorable to his defense.
defendant “claiming ineffective assistance of counsel
must show (1) that counsel's representation ‘fell
below an objective standard of reasonableness,' . . . and
(2) that counsel's deficient performance prejudiced the
defendant.” Roe v. Flores-Ortega, 528 U.S.
470, 476-77 (2000). “The burden is on the petitioner to
demonstrate ineffective assistance by a preponderance of the
evidence.” Lema v. United States, 987 F.2d 48,
51 (1st Cir. 1993). There is nothing in the record apart from
Defendant's bald assertions to support a claim for
prosecutorial misconduct. Accordingly, his claim of
ineffective assistance of counsel (based on his counsel's
failure to object to that alleged conduct) must also
reasons stated above, Petitioner's motion (Docket No.
248) is denied
to Section 2253(c), a Certificate of Appealability may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). In order to make this showing, a
petitioner must demonstrate that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). To be debatable
among jurists, the petitioner must show “something more
than the absence of frivolity or the existence of mere good
faith.” Miller-El v. Cockrell, 537 U.S. 322,
fails to demonstrate that reasonable jurists could debate
whether his petitioner for writ of habeas corpus should have
decided differently. The First Circuit has already rejected
his argument that his prior state court convictions do not
qualify as ACCA predicate convictions.
his claim for ineffective assistance is based on mere