United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
Frye ("Frye" or "petitioner") is
currently serving a twenty-five-year sentence for conspiring
to possess and distribute cocaine and heroin in violation of
21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). Frye
was purportedly a leader in a drug conspiracy which lasted
from approximately March 2008 until November 2010.
Court sentenced Frye on May 10, 2013, to 300 months
imprisonment, followed by a supervised term of release of ten
years. Frye appealed his conviction, arguing, among other
things, that this Court improperly made drug-quantity
findings and imposed a statutorily mandated sentence based on
those findings in violation of Allyene v. United
States, 570 U.S. 99 (2013). The First Circuit Court of
Appeals affirmed Frye's conviction and sentence.
then filed a pro se motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255
(Docket No. 1183). In June, 2019, this Court accepted and
adopted a Report and Recommendation of Magistrate Judge
Jennifer C. Boal (Docket No. 1263) ("the R&R")
dismissing Frye's § 2255 petition. In July, 2019,
Frye moved for reconsideration (Docket No. 1295) which this
Court also denied.
filed a notice of appeal to the First Circuit in October,
2019, and shortly thereafter, it directed this Court to issue
or deny a certificate of appealability with respect to
Frye's petition. For the following reasons, this Court
will deny such a certificate.
2253(c) of Title 28 of the United States Code provides that 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 a "substantial showing," a petitioner
seeking a certificate of appealability 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 meet the debatable-among-jurists-of-reason
standard the petitioner must prove "something more than
the absence of frivolity or the existence of mere good
faith." Miller-El v. Cockrell, 537 U.S. 322,
jurists would not debate whether Frye's habeas petition
should have been decided differently.
submits that this Court improperly sentenced him under 21
U.S.C. § 841(b)(1)(A), which carries a mandatory minimum
sentence of 10 years, based upon facts found by the Court at
sentencing rather than by the jury at trial. Frye alleges
that this resulted in a "constructive amendment" of
undisputed Frye did not raise his constructive amendment
claim on appeal and, for that reason, it was procedurally
defaulted. Bucci v. United States, 662 F.3d 18, 27
(1st Cir. 2011). In order to obtain collateral relief on his
procedurally defaulted claim, then, Frye had to demonstrate
cause for his procedural default and that the alleged error
resulted in actual prejudice to him. Id.
cannot demonstrate prejudice because, as already found by the
First Circuit and explained in detail in the R&R, this
Court did not impose the mandatory minimum sentence contained
in 21 U.S.C.S 841(b)(1)(A). Instead, the Court based its
sentence upon the applicable sentencing guidelines range and
deliberately avoided sentencing Frye under the statutory
provisions relative to aggravated offenses.
also submits that this Court improperly considered a prior
conviction in determining whether he qualified as a career
offender. The applicable sentencing guidelines range was,
however, 360 months to life regardless of whether Frye
qualified as a career offender. In any event, the presiding
judicial officer explicitly stated "I am not going to
sentence you as a career offender, even though you deserve
it" (Docket No. 936 at 51) .
reasonable jurists could not debate that Frye's habeas