USA v. STROTHER, et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TAYLOR LOVELY, )
)
Petitioner, ) 1:19-cr-00134-LEW-4
) 1:23-cv-00216-LEW
v. ) 1:19-cr-00171-LEW-3
) 1:23-cv-00288-LEW
UNITED STATES OF AMERICA, )
)
Respondent )
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTIONS
Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his
sentence. (Motions, 1:19-cr-00134-LEW-4, ECF No. 756, 1:19-cr-00171-LEW-3, ECF
No. 1140.) Following a guilty plea, Petitioner was convicted of two conspiracies to
distribute and possess with intent to distribute methamphetamine; the Court sentenced
Petitioner to 158 months in prison. (Amended Judgment, 1:19-cr-00134-LEW-4 ECF No.
578, 1:19-cr-00171-LEW-3 ECF No. 649.) In a consolidated appeal with two of
Petitioner’s codefendants, the First Circuit affirmed. United States v. Cruz, 49 F.4th 646
(1st Cir. 2022).
Petitioner claims his attorney provided ineffective assistance at the plea stage and
at sentencing. The Government requests dismissal. (Response, 1:19-cr-00134-LEW-4
ECF No. 773, 1:19-cr-00171-LEW-3 ECF No. 1142.)
Following a review of the record and after consideration of Petitioner’s motions and
the Government’s request for dismissal, I recommend the Court grant the Government’s
request and dismiss Petitioner’s motions.
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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In July 2019, a grand jury indicted Petitioner on: (1) conspiracy to distribute and
possess with intent to distribute 50 grams or more of methamphetamine or 500 grams or
more of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A)(viii); and (2) unlawful use of a communication facility in
violation of 21 U.S.C. §§ 843(b) and 843(d). (Indictment, 1:19-cr-00134-LEW-4, ECF
No. 2.) The conspiracy operated in Aroostook County between January 2017 and August
2018, and it involved ten other codefendants. (Id.; see also, Revised Presentence
Investigation Report (PSR) ¶ 8–10, 1:19-cr-00134-LEW-4, ECF No. 521, 1:19-cr-00171-
LEW-3, ECF No. 570.)
In September 2019, an investigation into a separate conspiracy produced a second
indictment against Petitioner for: (1) conspiracy to distribute and possess with intent to
distribute 50 grams or more of methamphetamine or 500 grams or more of a mixture
containing methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A)(viii); and (2) conspiracy to commit money laundering in violation of
18 U.S.C. §§ 1956(a)(1)(B)(i), 1956(h), and 1957(a). (Indictment, 1:19-cr-00171-LEW-3,
ECF No. 3.) The conspiracy operated in Aroostook County between July 2018 and May
2019, and it involved sixteen other codefendants. (Id.; see also, PSR ¶ 21–22.)
In December 2020, pursuant to a plea arrangement, Petitioner pled guilty to the first
count of each indictment. (Change of Plea Hearing, 1:19-cr-00134-LEW-4, ECF No. 461,
1:19-cr-00171-LEW-3, ECF No. 470.) Under the plea agreement, Petitioner waived his
right to appeal from a sentence not exceeding 120 months for the first conspiracy and 188
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months for the second conspiracy; the Government agreed, among other things, to (1)
dismiss the remaining charges, (2) recommend concurrent sentences, (3) recommend three-
level guideline reductions for acceptance of responsibility, and (4) recommend a three-
level downward variance for pleading guilty via video conference during the COVID-19
pandemic. (Plea Agreement, 1:19-cr-00134-LEW-4, ECF No. 455, 1:19-cr-00171-LEW-
3, ECF No. 450.)
The Probation Office noted that the statutory range was ten years to life and
recommended a base offense level of thirty-six because of the combined converted drug
weight of twenty kilograms, a two-level firearm enhancement, and three-level reductions
for acceptance of responsibility. (PSR ¶¶ 32–41, 77.) Based on a total offense level of
thirty-five and a criminal history category of II, the recommended guideline sentencing
range was 188 to 235 months in prison. (Id. ¶¶ 46, 78.) The three-level variance for the
COVID video plea reduced the range to 135 to 188 months. (Id. ¶¶ 79, 95.)
Petitioner initially contested seven major issues in the PSR. (Id. at 32–37.) The
Probation Office considered altering the recommendation on acceptance of responsibility
for contesting relevant conduct without an adequate basis. (Id. at 37.) Petitioner persisted
with only two of the original objections; he objected to the firearm enhancement and argued
that he should receive credit for certain time in custody. (Sentencing Memorandum, 1:19-
cr-00134-LEW-4, ECF No. 540, 1:19-cr-00171-LEW-3, ECF No. 600.) Petitioner also
argued that if the firearm enhancement did not apply, he would not be subject to the usual
mandatory minimum sentence based on the “safety valve” provision, see 18 U.S.C. §
3553(f); U.S.S.G. § 5C1.2, and if the firearm enhancement applied based only on the
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foreseeable conduct of coconspirators rather than on his own conduct, he would be eligible
for a two-point guideline reduction under the U.S.S.G. § 2D1.1(b)(18) safety valve. (Id.)
At sentencing in May 2019, the Government argued that (1) Petitioner was not
eligible under either safety valve provision because he failed to satisfy the fifth element
(making a complete and truthful disclosure of all information and evidence about the
offenses and schemes), (2) the firearm enhancement applied to Petitioner, and (3) Petitioner
should not receive the reductions for acceptance of responsibility because Petitioner was
charged with assaulting a corrections officer at Aroostook County Jail after the plea
agreement. (Sentencing Transcript at 38–48, 59–76, 87–88, 1:19-cr-00134-LEW-4, ECF
No. 687, 1:19-cr-00171-LEW-3, ECF No. 831.) Petitioner called as a witness a
psychologist, Dr. Diane Tennies, who performed a psychological evaluation of Petitioner;
Dr. Tennies testified as to how Petitioner’s purported inability to provide certain
information could be related to his cognitive difficulties rather than an attempt to withhold
or conceal pertinent information. (Id. at 20–36; 98–102 Supplemental Sentencing
Memorandum, 1:19-cr-00134-LEW-4, ECF No. 560, 1:19-cr-00171-LEW-3, ECF No.
622; Tennies Report, 1:19-cr-00134-LEW-4, ECF No. 560-1, 1:19-cr-00171-LEW-3, ECF
No. 622-1.)
The Court found that Petitioner was not eligible under either safety valve provision.
(Sentencing Transcript at 56–58.) The Court also applied the firearm enhancement and
determined that Petitioner was not entitled to the reductions for acceptance of
responsibility. (Id. at 83–84, 117–18.) A total offense level of 38 and a criminal history
category of II produced a guideline range of 262 to 327 months in prison. (Id. at 118, 124.)
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The Court also noted that it would consider the three-point downward variance. (Id. at
124.) A three-point reduction would have resulted in a range of 188 to 235 months. The
Court imposed a sentence of 188 months on each conviction, to be served concurrently,
and subsequently corrected the sentence to 158 months. (Id.; Judgment, 1:19-cr-00134-
LEW-4, ECF No. 578, 1:19-cr-00171-LEW-3, ECF No. 649.)
Petitioner filed an appeal challenging the constitutionality of one of the conditions
of supervised release; the First Circuit upheld the sentence. United States v. Cruz, 49 F.4th
646, 651–54 (1st Cir. 2022). Petitioner subsequently filed the § 2255 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) (internal 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.
An evidentiary hearing ‘is not necessary 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.’” Moreno-Morales v. United States, 334 F.3d 140, 145
(1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (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.’” David, 134 F.3d at 478 (quoting Machibroda v.
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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 permitting discovery or a hearing.
Id. (holding that “the district court did not abuse its discretion in refusing to license
a fishing expedition”).
B. Ineffective Assistance at Plea Stage
Petitioner argues that his attorney failed to advise him properly about the
stipulations of the plea agreement and to explain the detrimental effect of the plea
agreement on the scope of issues he could pursue on appeal. Petitioner does not identify
the stipulations counsel failed to explain or the issues Petitioner would have sought to
preserve for an appeal if counsel had provided additional explanation about the appeal
waivers. The arguments are too vague and, therefore, fail. See Hunnewell v. United States,
738 F. Supp. 582, 585 (D. Me. 1990) (“A section 2255 motion which states conclusions
without specific and detailed supporting facts may be summarily denied. Plainly,
Petitioner’s motion is too vague since it does not even hint at the evidence and comments
to which it refers”) (citation omitted).
Petitioner’s arguments are also unsupported by the record. At the change of plea
hearing, the Court inquired about counsel’s explanations of the plea agreement, Petitioner’s
understanding of the plea agreement, and the appeal waivers; Petitioner plainly stated that
counsel explained the issues and that he understood them fully. (Change of Plea Transcript
at 12–15, 19–27, 1:19-cr-00134-LEW-4, ECF No. 650, 1:19-cr-00171-LEW-3, ECF No.
772.) The Government also submitted records of communications among counsel,
Petitioner, and a family member who assisted in Petitioner’s defense, which records
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contain comprehensive explanations of the benefits of the plea agreement and the issues
and efforts relevant to the attempt to obtain the lowest possible sentence. (Exhibits, 1:19-
cr-00134-LEW-4, ECF Nos. 773-1–4, 1:19-cr-00171-LEW-3, ECF No. 1142-1–4.)
Because Petitioner’s contentions are inconsistent with the record evidence, he cannot
establish deficient performance or prejudice. See United States v. Marrero-Rivera, 124
F.3d 342, 349 (1st Cir. 1997) (noting that litigants are held to their assurances and that
statements at a plea hearing carry a strong presumption of truthfulness) (citations and
quotation marks omitted).
Petitioner also claims that his attorney provided ineffective assistance when he
advised that Petitioner would likely receive a longer sentence by foregoing a plea, rather
than explaining that it was Petitioner’s right to insist on a trial. Given the combination of
the three-point reduction for acceptance of responsibility and the three-point variance for
a COVID video plea, counsel reasonably assessed that the expected impact at sentencing
on a guilty plea would be significant.1 The record also shows that counsel advised
Petitioner that trial was an option with the downside of greater sentencing exposure and
the upside of a chance of acquittal. (October 5, 2019, Email at 8–9, 1:19-cr-00134-LEW-
4, ECF No. 773-3, 1:19-cr-00171-LEW-3, ECF No. 1142-3.) The Court also informed
Petitioner that he had a right to insist on a jury trial, and Petitioner confirmed that he
understood. (Change of Plea Transcript at 14–17.)
1 Although Petitioner ultimately did not obtain a reduction for acceptance of responsibility, counsel cannot
be deemed responsible for the consequences related Petitioner’s post-plea conduct.
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Because Petitioner has offered no explanation to undermine the contemporaneous
record evidence, he has failed to establish that his attorney performed deficiently or that he
was prejudiced as a result of counsel’s decisions.
C. Ineffective Assistance at Sentencing
Petitioner claims his attorney provided ineffective assistance at sentencing by: (1)
failing to investigate or secure rebuttal evidence regarding certain statements in the PSR;
(2) declining to maintain certain objections to the PSR, including some that might have
affected his placement within the federal correctional system; and (3) failing to elicit
effectively certain testimony and argue as to the importance of Petitioner’s mental health
status.
The arguments regarding sentencing fail for essentially the same reasons
Petitioner’s other challenges fail. Petitioner cannot establish deficient performance or
prejudice because his arguments are too vague. He does not explain with any particularity
which statements in the PSR were allegedly incorrect, the evidence that might have been
located, the objections counsel should have been maintained, or the additional evidence or
arguments that could have made a difference regarding his mental health. 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, Strickland’s prejudice prong is not satisfied”).
A review of the record does not reveal any substandard performance. Petitioner
confirmed the accuracy of the factual statements contained in the PSR, (Sentencing
Transcript at 10, 58–59), counsel made a reasonable tactical choice to forego less
persuasive objections in an effort to preserve the recommended acceptance of
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responsibility reductions, (April 26, 2021, Email, 1:19-cr-00134-LEW-4, ECF No. 773-4,
1:19-cr-00171-LEW-3, ECF No. 1142-4), and through Dr. Tennies’ testimony and report,
counsel presented evidence to support Petitioner’s argument for acceptance of
responsibility and leniency. In sum, Petitioner’s sentencing-related ineffective assistance
claim lacks record support.
CONCLUSION
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule
8 of the Rules Governing Section 2255 Cases. In addition, I recommend that the Court
deny Petitioner’s motions for habeas relief under 28 U.S.C. § 2255. 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 the denial of a constitutional
right within the meaning of 28 U.S.C. § 2253(c)(2).
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 30th day of November, 2023.
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