Perkins v. USA

Filing 10

ORDER dismissing Grounds One and Two in the 1 Petition for Writ of habeas corpus; granting 7 MOTION To Add Ground Four to 28 U.S.C. § 2255 Motion. The United States Attorney is ordered to file an answer to the remaining claims no later than 12/9/2016. The court defers ruling on 7 Motion to Appoint Counsel at this time. So Ordered by Judge Landya B. McCafferty.(jbw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Roger Perkins
v.

Civil No. 16-cv-288-LM
Opinion No. 2016 DNH 210

United States of America

O R D E R
Roger Perkins, proceeding pro se, seeks habeas corpus
relief, pursuant to 28 U.S.C. § 2255, from his sentence for
conspiracy to possess with intent to distribute a controlled
substance, possession of a firearm by a convicted felon, and
possession of a firearm in furtherance of a drug trafficking
crime.

See United States v. Perkins, 14-cr-104-LM (D.N.H. Nov.

3, 2015).

Perkins alleges that his sentence was improperly

enhanced under a provision of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924.

He argues that under Johnson v.

United States, --- U.S. ---, 135 S. Ct. 2551 (2015), his
sentence is invalid.

Perkins also raises two separate

ineffective assistance of counsel claims.
Standard of Review
A prisoner in custody under a sentence of a federal
district court may seek release “on the ground that the sentence
was imposed in violation of the Constitution or the laws of the

United States.”

§ 2255(a).

Sworn allegations in the petition

are taken as true “unless those allegations are merely
conclusory, contradicted by the record, or inherently
incredible.”

Owens v. United States, 483 F.3d 48, 57 (1st Cir.

2007) (internal quotation marks omitted).
Background
In United States v. Perkins, 14-cr-104-LM (“Criminal
Case”), Perkins pleaded guilty to one count of conspiracy to
possess with intent to distribute a controlled substance in
violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(iii) (Count I), one
count of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1) (Count II), and one count of
possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count III).

The

court sentenced Perkins to imprisonment for a term of 87 months
on Counts I and II to be served concurrently, and 60 months on
Count III to be served consecutively, for a total of 147 months.
See doc. no. 68 at 2.
The court grouped Counts I and II for the purposes of
sentencing.

The court determined Perkins’s base offense level

for Count I to be 24 pursuant to U.S.S.G. § 2D1.1(c)(8).

The

calculation was based upon the marijuana equivalent of 219.138
kilograms of controlled substances attributed to the defendant.
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The court next determined Perkins’s base offense level for Count
II to be 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A) because the
defendant was convicted of a felony crime of violence before
committing the instant offense.1

Because Counts I and II were

grouped together, the court applied the highest offense level in
the group.

Perkins, 14-cr-104, doc. no. 74 at 5.

Here, Count I

had the higher offense level.
The court did not calculate a guideline range for Count III
because pursuant to 18 U.S.C. § 924(c)(1)(A) and U.S.S.G. §
5G1.2(a), the mandatory minimum sentence of five years must run
consecutive to any other sentence imposed.

Finally, Perkins

received a 3-level reduction for acceptance of responsibility.
On June 27, 2016, Perkins filed a § 2255 petition setting
forth three separate grounds for relief: (1) ineffective
assistance of counsel for failing to invoke Johnson as it
relates to Perkins’s sentence under Count II; (2) denial of due
process under Johnson as it relates to calculating Perkins’s
sentence under Count II; and (3) ineffective assistance based on
counsel’s alleged failure to investigate and correctly advise
Perkins of his guideline range during plea negotiations (doc.

Perkins was convicted of Second Degree Assault on September
3, 2008, in Belknap County Superior Court. See Perkins, 14-cr104, doc. no. 65 at ¶ 62.
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no. 1).

The government objected to Perkins’s petition (doc. no.

6), but did not address his third ground for relief.
On August 17, 2016, Perkins moved to add a fourth ground to
his petition (doc. no. 7): ineffective assistance based on
counsel’s alleged failure to present a constructive possession
argument.

Perkins also requested in that motion that the court

appoint counsel to assist him in obtaining relief under § 2255.
The government did not respond to Perkins’s motion.
Discussion
The court first addresses Perkins’s claims for relief under
Johnson (Grounds One and Two), before turning to his separate
ineffective-assistance claims (Grounds Three and Four).
I.

Grounds One and Two
The ACCA § 924(e)(1) imposes a minimum sentence of fifteen

years “[i]n the case of a person who violates section 922(g) of
this title and has three previous convictions . . . for a
violent felony or a serious drug offense, or both, committed on
occasions different from one another.”
The term violent felony means any crime punishable by
imprisonment for a term exceeding one year that -(i)
has an element the use, attempted use, or threatened
use of physical force against the person of another;
or (ii) is burglary, arson, or extortion, involves the
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another.
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18 U.S.C. § 924(e)(2)(b).

In Johnson, the Supreme Court held

that the “otherwise involves” clause, also known as “the
‘residual clause’ of the [ACCA], 18 U.S.C. § 924(e), is
unconstitutionally vague and thus void.”
825 F.3d 75, 82 (1st Cir. 2016).

United States v. Bey,

Therefore, defendants

sentenced under the ACCA’s residual clause may be entitled to
relief from the sentence under § 2255, pursuant to Johnson.

See

Welch v. United States, --- U.S. ---, 136 S. Ct. 1257, 1265
(2016).2
In Grounds One and Two of his petition, Perkins claims that
he is entitled to relief because his sentence on Count II was
enhanced under U.S.S.G. § 2K2.1(a), which defines “crime of
violence” the same as the ACCA’s residual clause.
argument, however, is misplaced.

Perkins’s

The record reveals that the

base offense level for Count II had no effect on Perkins’s
sentence because it was grouped with Count I, and Count I
carried a higher base offense level.

Because Perkins’s base

offense level for Count II had no effect on his sentence, any

It is unclear whether Johnson applies to the residual clause
in U.S.S.G. § 2K2.1(a) and if it does, whether it does so
retroactively to cases on collateral review. Those questions
are currently before the United States Supreme Court. See
Beckles v. United States, No. 15-8544. For the purposes of this
order, the court assumes without deciding that Johnson is
applicable to the sentencing guidelines and applies
retroactively.
2

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error in calculating it was harmless.

See United States v.

Gerhard, 615 F.3d 7, 34 (1st Cir. 2010).

Johnson is therefore

inapplicable to Perkins’s sentence, and he is not entitled to
relief on that basis.

Thus, Grounds One and Two of the petition

are dismissed.
II.

Grounds Three and Four
In Grounds Three and Four of his petition, Johnson claims

that his counsel was constitutionally deficient for two separate
reasons: (1) failing to advise Perkins accurately about his
sentencing guideline range during plea negotiations, and (2)
failing to make an argument related to constructive possession
of the firearms found in his Criminal Case.
When a § 2255 petition is based on ineffective assistance
of counsel, the petitioner “must demonstrate both: (1) that
‘counsel’s performance was deficient,’ meaning that ‘counsel
made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment’; and
(2) ‘that the deficient performance prejudiced the defense.’”
United States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012)
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
The court grants Perkins’s motion to add Ground Four to his
petition.

As the government has not addressed Grounds Three and

Four of Perkins’s petition, the court orders the United States
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Attorney to respond to these two ineffective assistance claims
on or before December 9, 2016.

After the government files its

answer, the court will (1) determine whether an evidentiary
hearing is warranted on the remaining claims, and (2) consider
Perkins’s request for court-appointed counsel.
Conclusion
For the foregoing reasons, Grounds One and Two in the
petition for a writ of habeas corpus (doc. no. 1) are dismissed,
Perkins’s request to add Ground Four to his petition (doc. no.
7) is granted, and the United States Attorney is ordered to file
an answer to the remaining claims no later than December 9,
2016.

The court defers ruling on Perkins’s request for court-

appointed counsel at this time.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
November 22, 2016
cc:

Roger Perkins, pro se
Seth R. Aframe, Esq.

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