QUIRION v. UNITED STATES OF AMERICA

Filing 36

ORDER adopting 34 Report and Recommended Decision for 20 Motion Pursuant to Rule 15(c) Fed.R.Civ.P. and Rule 12 of the Rules Governing 2255 Proceedings Relation Back filed by ROBERT EARL QUIRION; denying 20 Motion Pursuant to Rule 15(c) Fed.R.Civ.P. and Rule 12 of the Rules Governing 2255 Proceedings Relation Back for Order. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBERT EARL QUIRION
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.

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1:03-cr-00021-JAW
1:05-cv-00006-JAW

ORDER AFFIRMING RECOMMENDED DECISION
On February 18, 2003, wearing a stocking hat with the hood of his sweatshirt
pulled up, Robert Earl Quirion entered the Skowhegan Savings Bank in Belgrade,
Maine, presented a teller with an envelope demanding money, and left with $700.00
in bait bills. Prosecution Version at 1 (ECF No. 23) (Docket No. 1:03-cr-00021JAW). During the robbery, Mr. Quirion placed his right hand into his jacket and
the teller thought that this was his way of telling her he had a gun. Id. Within an
hour, Mr. Quirion was apprehended with the bank’s money in his pocket. Id. On
January 8, 2004, Mr. Quirion pleaded guilty to bank robbery by force or violence, a
violation of 18 U.S.C. § 2113(a).

Concluding that Mr. Quirion was a Career

Offender within the meaning of United States Sentencing Guideline § 4B1.1, on
January 12, 2004, the Court sentenced Mr. Quirion to 210 months incarceration,
three years supervised release, and a $100.00 special assessment. J. (ECF No. 50).
He did not appeal.

On January 11, 2005, Mr. Quirion moved to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255. Mot. Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Fed. Custody (ECF No. 1) (Docket No.
1:05-cv-00006-JAW).

Mr. Quirion presented two grounds for relief: (1) that his

attorney rendered ineffective assistance of counsel by failing to argue that two of his
predicate convictions had been consolidated for sentencing and should have counted
as one offense; and (2) that his sentence violated his right to a jury trial under
Blakely v. Washington, 542 U.S. 296 (2004). Id. at 5. By Recommended Decision
dated January 14, 2005, the Magistrate Judge recommended that the Court dismiss
Mr. Quirion’s § 2255 petition. Recommended Decision on 28 U.S.C. § 2255 Mot.
(ECF No. 2). On February 1, 2005, the Court affirmed the Recommended Decision.
Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 4).
On February 10, 2005, Mr. Quirion appealed to the Court of Appeals for the First
Circuit.

Notice of Appeal (ECF No. 6) (Docket No. 1:05-cv-00006-JAW).

On

September 21, 2005, the First Circuit denied a certificate of appealability and
entered a judgment, terminating his appeal. J. (ECF No. 19).
On May 11, 2009, Mr. Quirion moved to reduce his sentence.

Mot. for

Reduction of Sentence Pursuant to Amend. to U.S. Sentencing Guidelines (ECF No.
55) (Docket No. 1:03-cr-00021-JAW).

In his motion, Mr. Quirion argued that

Amendment 709 to the United States Sentencing Guidelines that became effective
November 1, 2007 should apply to his case, and if it did, the Career Offender
provision would no longer apply to him. Id. at 1-2. On July 7, 2009, the Court

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denied his motion, concluding that Amendment 709 did not apply retroactively to
his case because his sentence had become final before the effective date of the
Amendment.

Order on Mot. for Reduction of Sentence at 1 (ECF No. 60). Mr.

Quirion did not appeal this Order.
On March 14, 2012, Mr. Quirion filed a motion under Rules 12 and 15, asking
the Court to exercise its discretion and revisit his § 2255 petition. Mot. Pursuant to
Rule 15(c) Fed. R. Civ. P. and Rule 12 of the Rules Governing § 2255 Proceedings
Relation Back (ECF No. 20) (Docket No. 1:05-cv-0006-JAW) (Def.’s Mot.). In his
Motion, Mr. Quirion contends that the Court should apply to his case the same
principles found in United States v. Godin, 522 F.3d 133 (1st Cir. 2008) and United
States v. Ahrendt, 560 F.3d 69 (1st Cir. 2009). Id. at 3. On September 7, 2012, the
Magistrate Judge issued a Recommended Decision in which she recommended that
the motion be denied by the Court. Recommended Decision on Mot. Pursuant to
Rule 15(c) Fed. R. Civ. P. and Rule 12 of the Rules Governing § 2255 Proceedings
Relation Back at 3 (ECF No. 34) (Recommended Decision).
The Magistrate Judge first ruled that Mr. Quirion was attempting to amend
the petition that he had filed in 2005 and that the 2005 petition was no longer
pending, so there was no active pleading to amend. Id. at 2. Next, the Magistrate
Judge noted that Mr. Quirion had raised the same issue in 2009, which was decided
against him. Id. Third, the Magistrate Judge concluded that, despite being labeled
a motion to amend, Mr. Quirion was in fact attempting to file a successive § 2255
petition. Id. In order to file a successive petition, the Magistrate Judge observed,

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Mr. Quirion was required to move in the appropriate court of appeals for an order
authorizing the district court to consider the application, which he had not done.
Id. at 3.
On September 27, 2012, Mr. Quirion objected to the Report and
Recommended Decision. Objection to the Magistrate’s R and R Dated 9/7/12 (ECF
No. 35). Mr. Quirion first disputes the Magistrate Judge’s assertion that he cannot
amend a pleading in a closed case. Id. at 1. He says that he cited caselaw that
allows such an amendment and that the Magistrate Judge cited no authority for her
conclusion.

Id.

Mr. Quirion’s cited authority relates to the application of the

doctrine of equitable tolling for statute of limitations purposes and he complains
that the Magistrate Judge failed to address his tolling issue. Id. at 1-2. Next, Mr.
Quirion claims that the issue he is now attempting to raise differs from his 2009
petition because his current claim of error is based on Gall v. United States, 552
U.S. 38 (2007). Id. at 2. He says that he only wants to be treated like Messrs.
Ahrendt and Godin. Id. 4-5.
Mr. Quirion is incorrect about the applicability of Rule 15 to a case where a
final judgment has issued. In Ondis v. Barrows, 538 F.2d 904 (1st Cir. 1976), the
First Circuit explained that “‘[m]ost courts faced with the problem have held that
once a judgment is entered the filing of an amendment cannot be allowed until the
judgment is set aside or vacated under Rule 59 and 60.’” Id. at 909 (quoting 6
CHARLES ALLAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §
1489).

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Furthermore, even if Mr. Quirion’s tolling theory were applicable, he has not
demonstrated extraordinary circumstances that prevented his timely assertion of a
right. The case Mr. Quirion cited, Nara v. Frank, 264 F.3d 310 (3d Cir. 2001) stated
“‘[t]his will occur when the petitioner has in some extraordinary way . . . been
prevented from asserting his or her rights.’”1 Id. at 319 (quoting Miller v. New
Jersey State Dep’t of Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998)). Here, Mr.
Quirion attached to his motion three hospital records from June of 2010, indicating
that he had a bout of pneumonia. Def.’s Mot. Attachs. 9-11. The last note of June
29, 2010 pronounced Mr. Quirion as “stable.” Id. Attach. 11. Mr. Quirion’s illness
in June 2010 from which he appears to have fully recovered does not constitute an
extraordinary circumstance justifying his failure to act when he was not so ill.
Finally, regarding his contention that the Magistrate Judge erred when she
wrote that his “present motion raises the same issue that the Court already decided
against Quirion in 2009,” Recommended Decision at 2, the Court agrees with the
Magistrate Judge.

The Court reviewed its Order on Motion for Reduction of

Sentence and notes that its Order dealt with precisely the same issue Mr. Quirion is
attempting to raise in his current motion: whether the First Circuit decisions in
Ahrendt and Godin require that the United States Sentencing Commission’s
Amendment 709 should be applied to his case.

Order on Mot. for Reduction of

Sentence at 1-5. Mr. Quirion’s attempt to reframe the question as one of discretion

Mr. Quirion also cites United States v. Thomas, 221 F.3d 430 (3d Cir. 2000), but Thomas is not
applicable because in Thomas the underlying petition had not been dismissed before the motion to
amend was filed.
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under Gall v. United States, 552 U.S. 38 (2007) does not change the fact that the
Court has already ruled against him on this issue.
The

Court

has

reviewed

and

considered

the

Magistrate

Judge’s

Recommended Decision, together with the entire record, and has made a de novo
determination of all matters adjudicated therein.

The Court concurs with the

recommendation of the Magistrate Judge for the reasons set forth in her
Recommended Decision and for the additional reasons set forth herein and the
Court determines that no further proceeding is necessary.
1. The Court ORDERS that the Recommended Decision of the Magistrate
Judge (ECF No. 34) be AFFIRMED;
2. The Court DENIES Robert Earl Quirion’s Motion Pursuant to Rule 15(c)
Fed. R. Civ. P. and Rule 12 of the Rules Governing § 2255 Proceedings
Relation Back (ECF No. 20).
SO ORDERED.

John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 26th of November, 2012

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