USA v. BENSON, et al.

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BERNARD GADSON, 	)
)
Petitioner 	)
) 	2:19-cr-00122-JAW-2
v. 	) 	2:24-cv-00443-JAW
) 	2:21-cr-00163-JAW
) 	2:24-cv-00444-JAW
UNITED STATES OF AMERICA, 	)
)
Respondent 	)
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
AND MOTION TO UPDATE PRESENTENCE REPORT
CRIMINAL HISTORY CALCULATION
Following guilty pleas in two related cases, Petitioner was convicted of attempted
bank fraud, aiding and abetting aggravated identity theft, and criminal contempt while on
pretrial release; the Court sentenced Petitioner to a total of 110 months in prison. (Second
Amended Judgment, 2:19-cr-00122-JAW-2, ECF No. 243, 2:21-cr-00163-JAW, ECF No.
95.) 	Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his
sentences. (Motion, 2:19-cr-00122-JAW-2, ECF No. 278, 2:21-cr-00163-JAW, ECF No.
130.) The Government requests dismissal of the motion. (Response, 2:19-cr-00122-JAW-
2, ECF No. 292, 2:21-cr-00163-JAW, ECF No. 144.) 	Petitioner also asked the Court to
modify his presentence investigation report (PSR) to reflect his contention that one of his
prior convictions has been vacated. (Motion to Update PSR, 2:19-cr-00122-JAW-2, ECF
No. 294, 2:21-cr-00163-JAW, ECF No. 146.) The Government also opposes that motion.
(Response, 2:19-cr-00122-JAW-2, ECF No. 297, 2:21-cr-00163-JAW, ECF No. 148.)
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Following a review of the record and after consideration of Petitioner’s motions and
the Government’s responses, I recommend that the Court grant Petitioner’s motion for
habeas relief under 28 U.S.C. § 2255 as to the claim for resentencing following a vacated
prior conviction and otherwise deny Petitioner’s motion for postconviction relief. 	I also
recommend that the Court dismiss the motion to update the presentence report.
F ACTUAL BACKGROUND AND PROCEDURAL HISTORY
In December 2018, Defendant and two associates engaged in a scheme to defraud
banks and credit unions throughout New England. 	(Prosecution Version ¶ 1, 2:19-cr-
00122-JAW-2, 	ECF 	No. 	189.) 	Petitioner 	would 	obtain 	the 	personal 	identifying
information of individuals with good credit scores and then provide information and fake
documents to the associates. (Id.) One of the associates would then apply for unsecured
personal loans in the names of the victims, withdraw the balance of the loans in cash, and
the three individuals would divide the money. (Id.)
In January 2019, after taking out one such loan in Kittery, Maine, the two associates
were arrested and interviewed. (Id. ¶¶ 2–3.) One of the associates told officers about the
scheme and the participants. 	(Id. ¶ 4.) 	A search of the individual’s phone revealed text
messages among the three associates regarding the loan application, an email from
Petitioner with a fake document for proof of income for one victim, and a text message
with a fake lease in the name of another victim. (Id. ¶ 5.)
A grand jury returned an indictment in June 2019. 	(Indictment, 2:19-cr-00122-
JAW-2, ECF No. 3.) As later amended, Petitioner was charged with bank fraud in violation
of 18 U.S.C. §§ 2 and 1344(2), two counts of aiding and abetting aggravated identity theft
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in violation of 18 U.S.C. §§ 2 and 1028A(1), attempted bank fraud in violation of 18 U.S.C.
§§ 2 and 1344(2), and conspiracy to commit bank fraud and aggravated identity theft in
violation of 18 U.S.C. §§ 371, 1344(2), and 1028A(1). (Superseding Indictment, 2:19-cr-
00122-JAW-2, ECF No. 64.) 	Petitioner was arrested in August 2019 in Massachusetts,
where other charges were pending; he was later released on pretrial supervision. 	(Initial
Appearance, 2:19-cr-00122-JAW-2, ECF No. 18; Detention Hearing, 2:19-cr-00122-JAW-
2, ECF No. 50.)
The Government subsequently learned that on many occasions between December
2019 and April 2021, Petitioner traveled well outside Massachusetts without permission in
violation of his conditions of release. (Prosecution Version, 2:21-cr-00163-JAW, ECF No.
38.) In June 2021, the Government filed a motion to revoke Petitioner’s bail. (Motion to
Revoke Bail, 2:19-cr-00122-JAW-2, ECF No. 171.) The Government also charged
Petitioner in a separate case with one count of criminal contempt in violation of 18 U.S.C.
§ 401(3). (Complaint, 2:21-cr-00163-JAW, ECF No. 3.)
In October 2021, Petitioner pled guilty to one count of attempted bank fraud and
one count of aiding and abetting aggravated identity theft; he also waived indictment and
pled guilty in the criminal contempt case. 	(Corrected Plea Agreement ¶¶ 1–2, 2:19-cr-
00122-JAW-2, ECF No. 191, 2:21-cr-00163-JAW, ECF No. 41; Guilty Pleas, 2:19-cr-
00122-JAW-2, ECF No. 192, 2:21-cr-00163-JAW, ECF No. 43.) The Government agreed
to dismiss the other charges and conditionally agreed to recommend a guideline reduction
for acceptance of responsibility. (Id. ¶ 4.) Petitioner also waived his right to appeal from
a sentence that did not exceed sixty months. (Id. ¶ 5.)
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At sentencing in May 2022, Petitioner contested many issues, including whether he
was the individual whom the associate had identified as the leader of the scheme; the Court
ruled against Petitioner and determined that Petitioner had not sufficiently accepted
responsibility for purposes of the three-level guideline reduction, but the Count decided
that Petitioner’s partial acceptance as reflected by the decision to plead guilty justified a
downward variance. 	(Sentencing Transcript at 50–51, 2:19-cr-00122-JAW-2, ECF No.
230, 2:21-cr-00163-JAW, ECF No. 80.) The Court calculated a total offense level of 27,
a criminal history category of IV, and a corresponding guideline range of 100 to 125
months for the bank fraud and criminal contempt convictions. 	(Id. at 51.) 	The statutory
minimum 	twenty-four-month 	sentence 	for 	aggravated 	identify 	theft 	to 	be 	served
consecutively set the overall guideline range at 124 to 149 months in prison. 	(Id. at 51–
52.) 	The Court sentenced Petitioner to concurrent terms of 80 months in prison for the
attempted bank fraud and criminal contempt convictions and 24 months in prison to be
served consecutively for the aggravated identify theft conviction, for a total term of 110
months in prison. 	(Amended Judgment, 2:19-cr-00122-JAW-2, ECF No. 223, 2:21-cr-
00163-JAW, ECF No. 73.)
Petitioner appealed, contesting three issues: (1) the use of intended loss rather than
actual loss in determining the offense level, as the guideline commentary instructed, (2) the
denial of the guideline reduction for acceptance of responsibility, and (3) the inclusion in
the order of restitution of one auto loan that Petitioner had obtained in his own name but
with false documents. In August 2023, the First Circuit rejected Petitioner’s arguments on
the first two issues, but because the Government conceded the restitution issue, the First
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Circuit remanded as to the amount of restitution without addressing the merits of that issue.
United States v. Gadson, 77 F.4th 16, 22–23 (1st Cir. 2023).
On remand, the Court reduced the amount of restitution. 	(Second Amended
Judgment, 2:19-cr-00122-JAW-2, ECF No. 243, 2:21-cr-00163-JAW, ECF No. 95.)
Petitioner sought Supreme Court review; in February 2024, the Supreme Court denied the
petition for a writ of certiorari. Gadson v. United States, 144 S. Ct. 823 (2024). Petitioner
later filed the § 2255 motion, the motion to update the PSR, and several supplements and
clarifications to his motions.
DISCUSSION
A. 	Legal Standards
A person may move to vacate his or her sentence on one of four different grounds:
(1) “that the sentence was imposed in violation of the Constitution or laws of the United
States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the
sentence was in excess of the maximum authorized by law”; or (4) that the sentence
“is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States,
37 F.3d 769, 772 (1st Cir. 1994).
“[P]ro se habeas petitions normally should be construed liberally in petitioner’s
favor.” United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (citing Estelle v. Gamble,
429 U.S. 97, 106 (1976)). 	The burden is on the section 2255 petitioner to establish by a
preponderance of the evidence that he or she is entitled to section 2255 relief. 	David v.
United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952,
954 (1st Cir. 1978). 	When “a petition for federal habeas relief is presented to the judge
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who presided at the petitioner’s trial, the judge is at liberty to employ the knowledge
gleaned during previous proceedings and make findings based thereon without convening
an additional hearing.” United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).
A collateral challenge is not a substitute for an appeal. United States v. Frady,
456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002).
“[A] defendant’s failure to raise a claim in a timely manner at trial or on appeal constitutes
a procedural default that bars collateral review, unless the defendant can demonstrate cause
for the failure and prejudice or actual innocence.” 	Berthoff, 308 F.3d at 127–28.
Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st
Cir. 2010). 	The First Circuit has recognized that “federal courts have the authority to
consider procedural default sua sponte.” Rosenthal v. O’Brien, 713 F.3d 676, 683 (1st Cir.
2013) (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)); see also Daniels v.
United States, 532 U.S. 374, 382–83 (2001) (recognizing that “procedural default rules
developed in the habeas corpus context apply in § 2255 cases”) (citing Frady, 456 U.S. at
167–68).
An allegation of ineffective assistance of counsel can excuse a procedural default if
the petitioner demonstrates that counsel’s representation “fell below an objective standard
of reasonableness.” 	Strickland v. Washington, 466 U.S. 668, 688 (1984). The petitioner
must also demonstrate that “there is a reasonable probability that, but for counsel’s
unprofessional 	errors, 	the 	result 	of 	the 	proceeding 	would 	have 	been 	different.
A reasonable probability 	is 	a 	probability 	sufficient 	to 	undermine 	confidence 	in 	the
outcome.” Id. at 694. A district court reviewing a claim of ineffective assistance of counsel
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need not address both prongs of the Strickland test because a failure to meet either prong
will undermine the claim. Id. at 697. If a petitioner’s “claims fail on the merits, his related
claims that counsel rendered ineffective assistance in failing to press the claims at trial or
on appeal must also fail.” 	Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per
curiam).
Under the law of the case doctrine, “issues disposed of in a prior appeal will not be
reviewed again by way of a 28 U.S.C. § 2255 motion.” Singleton v. United States, 26 F.3d
233, 240 (1st Cir. 1994) (modifications and quotation marks omitted); see also Elwell v.
United States, 95 F.3d 1146, 1996 WL 516138 at *5 (1st Cir. 1996) (holding that a
petitioner “is not entitled on collateral review to relitigate issues raised on direct appeal,
absent an intervening change in the law”); White v. United States, 371 F.3d 900, 902 (7th
Cir. 2004) (collecting cases and explaining limited exceptions).
“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.”
Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003). A hearing is
unnecessary “when a § 2255 petition (1) is inadequate on its face, or (2) although facially
adequate, is conclusively refuted as to the alleged facts by the files and records of the case.”
Id. (quotation marks omitted).
Summary dismissal of a motion is permitted when the allegations are “vague,
conclusory, or palpably incredible,” even “if the record does not conclusively and expressly
belie [the] claim.” 	Machibroda v. United States, 368 U.S. 487, 495 (1962). A court can
reasonably require a petitioner to supply the court with salient details of the claim prior to
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permitting discovery or a hearing. David, 134 F.3d at 478 (holding that “the district court
did not abuse its discretion in refusing to license a fishing expedition”).
B. 	Pre-Plea Predictions about Trial and Sentencing
Petitioner argues that his attorney provided ineffective assistance of counsel by
misleading him regarding his chances of acquittal at trial and the likely sentence if he pled
guilty. (Motion at 5.) Petitioner alleges that defense counsel told him that his chance of
acquittal was low in part because he is a black man in Maine and the primary witness
against him was a white woman. (Id.) Counsel acknowledges that he advised Petitioner
that he was not likely to prevail at trial and that Petitioner’s position at sentencing would
be more favorable after a guilty plea. (Rioux Declaration at 2, 2:19-cr-00122-JAW-2, ECF
No. 292-1, 2:21-cr-00163-JAW, ECF No. 144-1.) According to counsel, while Petitioner
was concerned about the likely racial composition of the jury, counsel attempted to reassure
him citing counsel’s prior success defending black defendants in Maine, but counsel
expressed concern about the evidence the Government would present against Petitioner.
(Id.)
Petitioner also alleges that counsel told him that a guilty finding after trial would
likely yield a sentence of around seven years, but if he pled guilty, the sentence would be
approximately forty months and no more than the sixty-month appeal waiver threshold.
(Motion at 5.) Counsel denies that he promised a forty or sixty-month sentence and asserts
that his estimate of seven years was for the original fraud case before the addition of the
bail revocation and criminal contempt charges. (Rioux Declaration at 2.)
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Petitioner also asserts that counsel told him that if he pled guilty and the conspiracy
charge was dismissed, the other uncharged conduct would not be considered for purposes
of sentencing. 	(Motion at 5, 8.) 	Counsel asserts that he discussed with Petitioner that
dismissal of the conspiracy count would be beneficial at sentencing, but he did not
guarantee that Petitioner’s other actions would not be considered relevant conduct at
sentencing. (Rioux Declaration at 2.)
Petitioner’s 	unsupported 	allegations 	are 	insufficient 	to 	establish 	deficient
performance or to necessitate an evidentiary hearing to resolve a genuine issue of
credibility. 	Notably, Petitioner fails to provide any authority that would suggest it is
improper for an attorney to discuss with a client the issues, including race, that might
impact a jury’s deliberations.1 Further, “an inaccurate prediction about sentencing will
generally not alone be sufficient to sustain a claim of ineffective assistance of counsel.”
Knight v. United States, 37 F.3d 769, 775 (1st Cir. 1994).
Even assuming that Petitioner’s account of his communications with counsel is
accurate, Petitioner’s claim also fails because the record does not support a finding of
prejudice. To establish prejudice in the context of a claim of ineffective assistance leading
to a guilty plea, “the defendant must show that there is a reasonable probability that, but
1 Petitioner contends that Buck v. Davis, 580 U.S. 100 (2017), established that it is impermissible and
coercive for counsel to assert that a guilty verdict is likely because of the race of the jurors. (Reply at 1,
2:19-cr-00122-JAW-2, ECF No. 301, 2:21-cr-00163-JAW, ECF No. 152; Reply to Declaration at 2, 2:19-
cr-00122-JAW-2, ECF No. 301-1, 2:21-cr-00163-JAW, ECF No. 152-1.) 	The Supreme Court found
deficient performance and prejudice when defense counsel introduced expert evidence in front of the jury
linking a defendant’s race with increased probability of future criminality. Buck, 580 U.S. at 119–22. The
case does not support Petitioner’s argument because it did not address attorney-client communications
regarding an assessment of trial-related issues.
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for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted
on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985), or would have accepted another
available and more favorable plea offer, Missouri v. Frye, 566 U.S. 134, 147 (2012).
Because Petitioner does not allege that he rejected a more favorable plea offer, the
question is whether the record would support a finding that Petitioner would have opted
for trial but for counsel’s alleged statements. The Supreme Court has acknowledged that
defendants may reasonably risk trial and forego the guideline reduction for acceptance of
responsibility in certain circumstances, but it has also cautioned that “[c]ourts should not
upset a plea solely because of post hoc assertions from a defendant about how he would
have pleaded” and “should instead look to contemporaneous evidence to substantiate a
defendant’s expressed preferences.” Lee v. United States, 582 U.S. 357, 369 (2017).
The record in this case is devoid of any contemporaneous evidence suggesting that
Petitioner would have insisted on going to trial but for counsel’s statements. Petitioner has
presented no evidence to undermine any of the evidence of guilt, and the evidence of guilt
was substantial. 	There are also no apparent special implications of conviction, such as
possible deportation, that might have caused Petitioner to proceed to trial rather than plead
guilty. See id. Petitioner’s ability to establish prejudice is also compromised by the explicit
warnings Petitioner received that the appeal waiver was not an estimate or a cap on the
sentence. 	(Corrected Plea Agreement at 4.) 	Because the record does not contain any
evidence that would support a finding of prejudice, Petitioner’s ineffective assistance
claims fail.
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C. 	Sentencing Preparation and Evidence
Petitioner contends that he was deprived of the effective assistance of counsel at
sentencing 	because 	he 	did 	not 	receive 	the 	guideline 	reduction 	for 	acceptance 	of
responsibility and because counsel declined to introduce a letter from his codefendant
containing an assertion that Petitioner was not the individual named Gio who led the
scheme. (Motion at 6, 9.) Defense counsel reported that he decided not to introduce the
letter because it was unlikely to convince the judge that Petitioner was not Gio given that
at his plea hearing, Defendant acknowledged the accuracy of the prosecution version,
which asserted that Petitioner was Gio. (Rioux Declaration at 4-5.) Counsel also asserted
that he concluded the letter could have been counterproductive as the Government could
argue that Petitioner had pressured his cousin (the codefendant) to provide false evidence
to help Petitioner at sentencing. (Id. at 5.)
Petitioner also argues that his attorney arrived at the sentencing hearing with a blank
notepad and failed to prepare to advocate for him. (Motion at 6.) Counsel asserted that he
likely did bring a blank notepad because he ordinarily takes notes during the Government’s
presentation, but he also brought other materials, including exhibits that he submitted to
the Court. (Rioux Declaration at 5.)
None of Petitioner’s arguments establishes deficient performance or prejudice from
counsel’s decisions at sentencing. 	Because Petitioner offers no convincing response to
counsel’s countervailing concerns about the letter, the decision not to introduce the letter
was a reasonable strategic decision. A review of the record—including the objections to
the PSR, the sentencing memoranda, and the sentencing transcript—conclusively refutes
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any allegation that counsel was unprepared and failed to present argument in Petitioner’s
defense. To the contrary, counsel argued effectively for acceptance of responsibility and
the Court varied downward for his partial acceptance of responsibility despite Petitioner’s
decision to dispute various issues regarding his role and identity. Because Petitioner does
not identify the other material issues, arguments, or evidence that would have been
discovered or raised at sentencing if counsel made additional preparations, the claim is too
speculative to support postconviction relief. 	See Janosky v. St. Amand, 594 F.3d 39, 49
(1st Cir. 2010) (“Where, as here, the result of counsel’s alleged failure to investigate is
wholly speculative,” an ineffective assistance claim fails).
D. 	Judicial Bias
Petitioner asserts that trial and appellate counsel provided ineffective assistance by
failing to object or seek recusal when the judge allegedly exhibited bias against Petitioner
at sentencing. 	(Motion at 10.)2 	The statements that Petitioner contends reflect bias are
simply insufficient to establish judicial bias. See Liteky v. United States, 510 U.S. 540, 556
(1994) (noting that “judicial rulings, routine trial administration efforts, and ordinary
admonishments (whether or not legally supportable) to counsel and to witnesses” during
judicial proceedings are not sufficient to establish judicial bias unless they “relied upon
knowledge acquired outside such proceedings” or “displayed deep-seated and unequivocal
antagonism that would render fair judgment impossible”). At most, the statements that
2 Petitioner initially framed the claim as one of judicial error, but after the Government argued correctly
that the claim was procedurally defaulted for failing to raise it at sentencing or on appeal, Petitioner invoked
ineffective assistance, either as a clarification regarding the nature of his claim or as cause to excuse the
procedural default. (Reply to Declaration at 5.)
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Petitioner cites reflect a misunderstanding regarding certain facts. The statements do not
suggest bias. Petitioner also has not explained (and it is not apparent) how the statements
were material or significant enough to warrant an objection, additional counterarguments,
or a motion for recusal.3
In short, Petitioner has not established deficient performance or prejudice from
counsel’s decisions because the underlying assertion of judicial bias lacks merit.
E. 	Actual vs. Intended Loss
Petitioner argues that the Court erred by applying a twelve-point increase to his base
offense level for a total intended loss over $250,000. Petitioner contends that the amount
would have been lower and thus the base offense level would have been four points lower
if the approximate $107,000 auto loan that Petitioner obtained in his own name was not
considered. (Motion at 14.) According to Petitioner, the Government conceded on direct
appeal that the auto loan should not have been part of the restitution order, but his guideline
range was still improperly increased because of that loan. (Id.)
3 For example, Petitioner originally objected to the PSR’s references to certain fraudulent transactions in
Minnesota while he was on pretrial release, but he withdrew the objection when the government was
prepared to submit evidence on the issue. (Sentencing Transcript at 34–37.) When explaining why it was
appropriate for Petitioner to receive a longer sentence than the codefendant, the Court noted that Petitioner
(but not the codefendant) had “pled guilty also now to criminal contempt for his conduct in Minnesota,
having been released on bail for this type of fraudulent conduct and then repeating it . . .” (Id. at 56.)
Petitioner does not dispute that he (but not the codefendant) pled guilty to criminal contempt and chose not
to contest the evidence that he had continued to engage in similar fraudulent conduct. Rather, Petitioner
faults the Court for what might be construed as a conflation of Petitioner’s decision not to contest the
evidence of the fraudulent transactions with an admission of guilt. Counsel’s decision not to object was
not unreasonable given that there could be no dispute that the Court’s substantive point was sound:
Petitioner’s decisions to travel and engage in similar conduct while on pretrial release distinguished his
situation from that of his codefendant.
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Petitioner procedurally defaulted the claim by failing to raise it on direct appeal.
Even if Petitioner could overcome the default through an assertion of ineffective assistance
of counsel, that assertion would fail because the underlying argument lacks merit. While
the auto loan originally impacted the restitution order, the auto loan was not material to the
guideline sentencing range because the Probation Office and the Court only included a
much smaller portion–approximately $7,600–as part of their calculation of the intended
loss. 	(PSR at 11.) 	Because the total intended loss was far greater than $257,600, the
twelve-level increase to the offense level would have been the same even without
considering the auto loan. See Gadson, 77 F.4th at 22 n.3 (noting that Petitioner conceded
the auto loan was immaterial to the offense level increase unless he could win the argument
regarding actual vs. intended loss). Accordingly, the claim fails.
F. 	Massachusetts Conviction for Breaking and Entering
At sentencing, Petitioner received two points toward his criminal history score for
a 2014 conviction in Massachusetts for breaking and entering. 	Petitioner had a criminal
history category of IV, which yielded an overall guideline range of 124 to 149 months in
prison. Without the two points from the conviction, Petitioner would have had a criminal
history category of III, which would have produced an overall guideline range of 111 to
132 months in prison. In several filings after his initial § 2255 motion, Petitioner argues
that: (1) his attorney provided ineffective assistance at sentencing by failing to maintain
his objection to the two criminal history points because it was duplicative and erroneous
under the relevant guideline provisions, and (2) he is entitled to be resentenced because the
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prior conviction was subsequently vacated. The Government argues the claims are barred
by the statute of limitations.
Title 28 U.S.C. § 2255(f) provides:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of –
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
When there are multiple claims at issue, “the period of limitation in 28 U.S.C. § 2255(f)
should be applied on a claim-by-claim basis.” Capozzi v. United States, 768 F.3d 32, 33
(1st Cir. 2014).
The Court entered an amended judgment on remand in September 2023 after the
First Circuit affirmed the district court’s judgment in part and reversed in part in August
2023. Petitioner’s judgment became final on February 20, 2024, when the Supreme Court
denied his request for further appellate review. 	See In re Smith, 436 F.3d 9, 10 (1st Cir.
2006) (when a defendant unsuccessfully seeks a writ of certiorari, “every circuit that has
addressed the issue has concluded that a conviction becomes final—and the one-year
period therefore starts to run—when a petition for certiorari is denied”). 	The limitation
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period for filing a § 2255 motion to challenge the judgment expired one year later, on
February 20, 2025. 	See Rogers v. United States, 180 F.3d 349, 355 n.13 (1st Cir. 1999)
(“When a statute of limitations is measured in years, the last day for instituting the action
is the anniversary date of the start of the limitations period”) (quotation omitted).
Petitioner’s original § 2255 motion was filed timely because it was dated and
received in December 2024, approximately two months before the limitations period
expired. 	The original motion, however, contained no reference to the prior conviction
issues. There was no mention of the alleged guideline error or the state court vacatur. The
first time Petitioner arguably raised those issues was in his motion to update the
presentence report, which was dated June 9, 2025, and received on June 30, 2025, nearly
four months after the limitations period under subsection (f)(1) expired.
Petitioner invokes the rules for relating back amendments to a prior pleading.
Petitioner’s alleged double counting guideline error claim would only be timely if it relates
back, pursuant to Fed. R. Civ. P. 15(c), to the issues raised in the original section 2255
motion 	that 	Petitioner 	filed 	before 	the 	limitations 	period 	expired.4 	See 	Turner 	v.
United States, 699 F.3d 578, 585 (1st Cir. 2012) (noting “[t]he relation back provision in
habeas petitions is strictly construed,” and “amended habeas corpus claims generally must
4 Fed. R. Civ. P. 15(c) states in relevant part: “An amendment to a pleading relates back to the date of the
original pleading when: (A) the law that provides the applicable statute of limitations allows relation back;
[or] (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence
set out−or attempted to be set out−in the original pleading.” 	Rule 15 “governs amendments to habeas
petitions in a § 2255 proceeding.” United States v. Ciampi, 419 F.3d 20, 23 (1st Cir. 2005).
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arise from the same core facts, and not depend upon events which are separate both in time
and type from the events upon which the original claims depended”) (internal quotations
omitted). Petitioner notes that his original motion raised ineffective assistance claims, but
the original claims involved distinct issues and did not concern his prior convictions or
objections to his criminal history score. The alleged double counting guideline error claim,
therefore, does not relate back to the original filing. See United States v. Ciampi, 419 F.3d
20, 24 (1st Cir. 2005) (“a petitioner does not satisfy the Rule 15 ‘relation back’ standard
merely by raising some type of ineffective assistance in the original petition, and then
amending the petition to assert another ineffective assistance claim based upon an entirely
distinct type of attorney misfeasance”).
“[T]he AEDPA statute of limitations defense is not jurisdictional” and “is subject
to equitable tolling in appropriate cases.” 	Holland v. Florida, 560 U.S. 631, 645 (2010)
(internal quotations omitted). “To obtain tolling . . . a petitioner bears a substantial burden
to establish . . . that he exercised reasonable diligence in trying to preserve his rights but
was prevented from timely filing by extraordinary circumstances.” 	Dominguez v. Duval,
527 F. App’x 38, 40 (1st Cir. 2013); see also Trapp v. Spencer, 479 F.3d 53, 61 (1st Cir.
2007) (discussing illustrative cases). “The diligence prong covers those affairs within the
petitioner’s control, while the extraordinary-circumstances prong covers matters outside
his control.” 	Blue v. Medeiros, 913 F.3d 1, 8 (1st Cir. 2019). 	Petitioner provided no
allegations 	or 	arguments 	to 	establish 	the 	requisite 	diligence 	and 	extraordinary
circumstances for equitable tolling.
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A sufficient showing of “actual innocence” can also provide “a gateway through
which a petitioner may pass” to reach the merits of a postconviction challenge despite a
procedural default or the expiration of the statute of limitations. 	McQuiggin v. Perkins,
569 U.S. 383, 386 (2013). To establish a gateway innocence claim, a petitioner must show
that it is more likely than not that, “in light of the new evidence, no reasonable juror would
find him guilty beyond a reasonable doubt.” 	House v. Bell, 547 U.S. 518, 538 (2006)
(discussing Schlup v. Delo, 513 U.S. 298, 329 (1995)). 	In this case, Petitioner has not
presented any new evidence on the question of his guilt that was not presented or available
before conviction. Any gateway innocence claim, therefore, fails.
For those reasons, the guideline error claim is untimely and dismissal is warranted.5
A somewhat different analysis applies to the vacated conviction claim, however.
A person may move to vacate his or her sentence on one of four different grounds:
(1) “that the sentence was imposed in violation of the Constitution or laws of the United
States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the
sentence was in excess of the maximum authorized by law”; or (4) that the sentence
5 To the extent that there is any doubt about the timeliness of the claim, dismissal would also be appropriate
because the claim lacks merit. Petitioner argues that the conviction should not have been counted in his
criminal history score because the sentence for the crime was imposed to run concurrently with another
conviction for which Petitioner received points toward his criminal history score. Petitioner is mistaken,
however, because the relevant guideline specifies that “[p]rior sentences always are counted separately if
the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is
arrested for the first offense prior to committing the second offense.)” See U.S.S.G. § 4A1.2(a)(2). The
PSR and the Government’s exhibits from the state court proceedings reflect that although Petitioner was
sentenced at the same time for the two offenses, he committed the offenses several months apart and
committed the second offense several months after being arrested for the first offense. To the extent that
Petitioner seeks to construe the intervening arrest language as requiring an arrest after being sentenced for
the first crime, the argument does not consider the parenthetical in the guideline and Petitioner does not
offer a persuasive explanation or authority to support the argument.
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“is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States,
37 F.3d 769, 772 (1st Cir. 1994). The fourth prong of § 2255(a) is a narrow category that
applies only in “exceptional circumstances” and “encompasses 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.” 	Cuevas v. United States, 778 F.3d 267, 271–72 (1st Cir. 2015) (quotation
marks and modification omitted). 	The First Circuit has recognized that one qualifying
scenario involves cases where there is a postjudgment vacatur of a state conviction which
affected the federal statutory or guideline sentencing range. Id. at 273. The Supreme Court
teaches that the vacatur is a new fact that would prompt a new one-year statute of
limitations provided the petitioner sought the vacatur of the predicate conviction with due
diligence in state court after entry of judgment in the federal case. Johnson v. United States,
544 U.S. 295, 298 (2005).
Although Petitioner did not address the issue of his diligence following the entry of
judgment in his federal criminal case even after a procedural order highlighted the issue,
and although the delay appears to be lengthy, the Government expressly waived the statute
of limitations defense. 	(Supplemental Response at 10, 2:19-cr-00122-JAW-2, ECF No.
314, 2:21-cr-00163-JAW, ECF No. 165 (“the Government does not challenge whether this
new claim is timely filed or procedurally defaulted”)). 	Because the Government waived
the timeliness issue, the Court need not (and likely is not permitted to) rely on Petitioner’s
failure to establish diligence in seeking to overturn the prior state court conviction after
sentencing in federal court. See Nunez-Perez v. Escobar-Pabon, 133 F.4th 33, 42 (1st Cir.
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2025) (noting that “a district court has no discretion to take up a timeliness defense sua
sponte when the government is aware of the limitations defense and intelligently chooses
not to rely on it or when the defense is strategically withheld”) (quotation marks and
modifications omitted).
The Government argues instead that Petitioner is not entitled to resentencing
because the Court made comments suggesting that its sentence was somewhat divorced
from the guideline range and because the sentence was lower than the low end of the
guideline range that would have applied without the two criminal history points from the
prior conviction. Courts have found resentencing to be unnecessary after the vacatur of a
prior conviction when the guideline range would have been the same even with the lower
criminal history score, such as when the lower criminal history score does not change the
criminal history category. See United States v. Henry, No. CR 14-10319-DJC, 2020 WL
58418, at *6 (D. Mass. Jan. 6, 2020). Although a postconviction court is required in some
contexts (such as when analyzing the prejudice prong of an ineffective assistance claim) to
consider what a court was likely to have done in alternative scenarios, the First Circuit
instructs against that type of reasoning in the context of a vacated conviction that was used
to enhance the guideline range of a federal sentence.
In Cuevas, the First Circuit held that postconviction relief is available not only
when a vacated prior conviction altered the statutory range but also in “cases involving
vacaturs of state convictions which affect federal Guidelines sentences.” 778 F.3d at 273.
When the Government argued in that case that resentencing was not necessary because the
district court had the authority to and might impose the same sentence under the reduced
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guideline 	range, 	the 	First 	Circuit 	“reject[ed] 	th[e] 	argument,” 	and 	discouraged
“[s]peculation” or “conjecture” without a new sentencing proceeding that the district court
would impose the same sentence it had when it originally considered “the equivalent of a
nonexistent offense.” Id. at 275 (quoting Narvaez v. United States, 674 F.3d 621, 629 (7th
Cir.2011)).
For those reasons, the Court should resentence Petitioner with the benefit of
guideline calculations that are not impacted by a “nonexistence offense.”
G. 	Motion to Update the Presentence Report
Petitioner asked the Court to update the PSR to remove references to the prior
conviction later vacated in state court. I previously noted that a sentencing court ordinarily
has no authority to do as Petitioner requested. See United States v. Sawyer, No. CR 15-
897-TUC-CKJ, 2025 WL 2645695, at *1 (D. Ariz. Sept. 15, 2025). 	Through several
filings, Petitioner clarified that he wished instead for the Court to consider the argument in
connection with his § 2255 motion because he maintained that it entitled him to a new
sentencing proceeding. For the reasons explain above, I conclude that Petitioner is entitled
to a resentencing proceeding. 	The motion to update the PSR is now moot because
Petitioner has arguably withdrawn the motion, and even if he has not withdrawn the
motion, he will obtain through that proceeding the same relief he seeks in the PSR motion.
Accordingly, dismissal of the motion is appropriate.
C ONCLUSION
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule
8 of the Rules Governing Section 2255 Cases. I recommend that the Court grant
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Petitioner’s motion for habeas relief under 28 U.S.C. § 2255 as to the claim for resentencing
following 	a 	vacated 	prior 	conviction 	and 	otherwise 	deny 	Petitioner’s 	motion 	for
postconviction relief. I further recommend that the Court deny a certificate of appealability
pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no
substantial showing of any other denial of a constitutional right within the meaning of 28
U.S.C. § 2253(c)(2). I also recommend the Court dismiss the motion to update the PSR.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
and shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 7th day of August, 2026.
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