Perkins v. USA
/// ORDER denying 1 MOTION to Vacate Sentence under 28 USC 2255; denying 7 Motion to Appoint Counsel. The court declines to issue a certificate of appealability. The clerk of court shall enter judgment accordingly and close the case. So Ordered by Judge Landya B. McCafferty.(jbw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-288-LM
Opinion No. 2017 DNH 027
United States of America
O R D E R
Roger Perkins, proceeding pro se, moves under 28 U.S.C.
§ 2255 for relief 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).
In a previous
order (doc. no. 10), the court dismissed two of his claims.
Perkins further requests that the court appoint counsel to
assist him in obtaining relief.
Standard of Review
Under § 2255, a federal prisoner may ask the court to
vacate, set aside, or correct a sentence that “was imposed in
violation of the Constitution or laws of the United States.”
28 U.S.C. § 2255(a).
The burden of proof is on the petitioner.
Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015)
(citing David v. United States, 134 F.3d 470, 474 (1st Cir.
Once a prisoner requests relief under § 2255, the
district court must grant an evidentiary hearing unless “the
motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief.”
28 U.S.C. §
2255(b); see also Owens v. United States, 483 F.3d 48, 57 (1st
If the district court does not hold an evidentiary
hearing, the allegations set forth in the petition are taken as
true “unless those allegations are merely conclusory,
contradicted by the record, or inherently incredible.”
483 F.3d at 57 (quoting Ellis v. United States, 313 F.3d 636,
641 (1st Cir. 2002)).
Because Perkins is proceeding pro se, the
court construes his petition liberally.
See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam).
On March 25, 2014, members of the Laconia Police Department
searched a residence that Perkins and co-conspirator Windyann
Plunkett leased together in Laconia, New Hampshire.
under investigation for drug trafficking in the Laconia area.
According to the stipulated facts in the plea agreement,
officers found drugs and four firearms during their search of
Two firearms were located on a closet
shelf in a back bedroom, and two firearms were discovered in a
safe that officers seized from the same bedroom closet.
Plunkett later admitted that the firearms located in the safe
belonged to Perkins.
Cr. doc. no. 47 at 6.1
After his arrest,
in a recorded telephone call from jail, Perkins admitted that
all four firearms were his.
Id. at 7.2
On July 21, 2015, 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)
Perkins entered a plea agreement for a binding
term of imprisonment of 87 months on Counts I and II and 60
months on Count III, to be served consecutively, for a total of
Id. at 9.
“Cr. doc. no.” refers to document numbers in the docket of
the underlying criminal proceeding (14-cr-104-LM). “Doc. no.”
refers to document numbers in the instant proceeding.
According to the plea agreement, when asked at the police
station “if the items located in the back bedroom were
Plunkett’s,” Perkins reportedly “shook his head and stated ‘it’s
all mine.’” Cr. doc. no. 47 at 6. Prior to changing his plea,
Perkins had filed a motion to suppress this post-arrest
statement. See cr. doc. no. 19. The court denied the motion as
moot (cr. doc. no. 29 at 6 n.2) after the government agreed not
to introduce that statement in its case-in-chief at trial. See
cr. doc. no. 24 at 2.
On November 2, 2015, the court sentenced Perkins.
presentence report (“PSR”) grouped Counts I and II for the
purposes of sentencing and applied the higher offense level
Based on a total offense level of 21 and a criminal
history category of III, Perkins’s guideline sentencing range
for the grouped counts was 46-57 months.
Cr. doc. no. 62 at 24.
Count I, however, carried a mandatory minimum sentence of five
years, so Perkins’s guideline term of imprisonment for the
grouped counts was 60 months.
The PSR 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 statutory minimum
sentence of five years on Count III ran consecutive to any other
Therefore, Perkins’s total guideline sentence
was 120 months: 60 months on Counts I and II and a consecutive
60-month sentence on Count III.
Cr. doc. no. 74 at 5.
However, Perkins had agreed to a stipulated sentence of 147
months imprisonment: 87 months on Counts I and II and 60 months
on Count III.
At the sentencing hearing, Perkins’s trial
counsel explained that he negotiated a sentence of 87 months on
Counts I and II because Perkins had a prior state felony drug
Perkins’s adjusted offense level for Count I was 24, and
his adjusted offense level for Count II was 22. Cr. doc. no. 62
at 8-9. The court applied the higher offense level and then
subtracted three levels for acceptance of responsibility, which
yielded a total offense level of 21. Id. at 9.
See id. at 6.
If the government had properly
established Perkins’s prior felony drug conviction, pursuant to
21 U.S.C. § 851, the mandatory minimum sentence on Count I would
have increased from 60 months to 120 months.
See 21 U.S.C. §
This would have increased Perkins’s total
mandatory minimum sentence to 180 months.
Thus, Perkins agreed
to an above-guideline sentence of 147 months to prevent the
government from filing a § 851 enhancement.
The court granted
the parties’ joint motion for an upward variance and sentenced
Perkins to 147 months, in accordance with the plea agreement.
On June 27, 2016, Perkins filed a § 2255 petition setting
forth three grounds for relief.
Doc. no. 1.
moved for leave to add a fourth ground to his petition (doc. no.
7), which the court granted.
two of the claims.
The court subsequently dismissed
Doc. no. 10.
Perkins’s remaining claims
are: (1) ineffective assistance based on counsel’s failure to
correctly advise Perkins of his guideline sentencing range
during plea negotiations, and (2) ineffective assistance based
on counsel’s failure to inform Perkins of the elements of
constructive possession of a firearm.
Perkins also requests
that the court appoint counsel to assist him in obtaining relief
under § 2255.
Doc. no. 7.
On November 22, 2016, the court
ordered the United States Attorney to file an answer to
Perkins’s two remaining claims.
Doc. no. 10.
2016, the government filed its response.
On December 20,
Doc. no. 11.4
Perkins’s remaining grounds for relief both raise
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.’”
States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also
Hill v. Lockhart, 474 U.S. 52, 58 (1985) (“[T]he two-part
Perkins objects to the government’s supplemental response,
arguing that the government (1) waived any objection to the
first ineffective-assistance claim by failing to object in its
initial response (doc. no. 6), and (2) filed its response after
the December 9, 2016 deadline set by the court, without
requesting an extension. See doc. nos. 12 & 13. First, the
court finds no waiver based on the government’s failure to
address Perkins’s claim in its initial response. Second,
Perkins has not alleged that he suffered prejudice as a result
of the late filing. The court considers the government’s
supplemental response in the interest of justice. Cf. LR 1.3(b)
(“The court may excuse a failure to comply with any local rule
whenever justice so requires.”).
Strickland v. Washington test applies to challenges to guilty
pleas based on ineffective assistance of counsel.”).
Under the deficiency prong, the petitioner “must show that
counsel’s representation fell below an objective standard of
Strickland, 466 U.S. at 688.
There is a
“strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” and the petitioner
“must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.”
Id. at 689 (internal quotation marks omitted).
prejudice prong, the petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694.
Failure to satisfy either the deficiency or
prejudice prong defeats an ineffective-assistance-of-counsel
Id. at 700.
Incorrectly Estimating the Guideline Sentencing Range
Perkins claims that his trial counsel was ineffective for
incorrectly estimating his guideline sentencing range and
advising him to accept a plea agreement that was above the
According to Perkins, his trial counsel
mistakenly informed him that his total offense level for Count
II, after a three-level decrease for acceptance of
responsibility, was 25, giving him a guideline sentencing range
of 70-87 months.
Perkins alleges that trial counsel advised him
to sign a binding plea agreement for the high end of that range—
87 months—plus 60 months consecutive on Count III, for a total
sentence of 147 months imprisonment.
In support of his claim, Perkins points to his initial PSR,
which calculated his guideline range for grouped Counts I and II
as 70-87 months.
Cr. doc. no. 57 at 24.
revised the PSR and recalculated the guideline sentence for the
grouped counts as 60 months.
Cr. doc. no. 62 at 24.
asserts that he only agreed to serve 87 months on those counts
because counsel incorrectly estimated his guideline range.
Perkins states that he would never have entered a plea agreement
for a sentence above the guideline range.
Perkins’s claim fails for two reasons.
First, when trial
counsel negotiated the plea agreement, Perkins’s guideline range
had not been calculated, as the PSR was drafted after Perkins
In fact, Perkins’s plea agreement included the
The defendant is aware that any estimate of the
probable sentence or the probable sentencing range
relating to the defendant pursuant to the advisory
Sentencing Guidelines that the defendant may have
received from any source is only a prediction and not
a promise, and is not binding on the United States,
the Probation Office, or the Court, except as
expressly provided in this Plea Agreement.
Cr. doc. no. 47 at 9.
Thus, Perkins was aware that trial
counsel’s sentencing-range estimate was only a non-binding
Courts have made clear that inaccurately predicting
a defendant’s guideline range cannot serve as the basis for an
See Santana-Zapata v.
United States, No. 15-cv-016-LM, 2015 WL 6875118, at *4 (D.N.H.
Oct. 28, 2015) (“It is well-established in the First Circuit
that an inaccurate prediction about sentencing will generally
not alone be sufficient to sustain a claim of ineffective
assistance of counsel.” (internal quotation marks and citations
omitted)); Knight v. United States, 37 F.3d 769, 775 (1st Cir.
1994); see also United States v. Martinez, 169 F.3d 1049, 1053
(7th Cir. 1999) (“[A]n attorney’s mere inaccurate prediction of
a sentence does not demonstrate the deficiency component of an
ineffective assistance of counsel claim.” (internal quotation
marks omitted)); United States v. Gordon, 4 F.3d 1567, 1570
(10th Cir. 1993) (“A miscalculation or erroneous sentence
estimation by defense counsel is not a constitutionally
deficient performance rising to the level of ineffective
assistance of counsel.”); United States v. Turner, 881 F.2d 684,
687 (9th Cir. 1989) (inaccurate prediction of guideline range
does not constitute ineffective assistance); United States v.
Sweeney, 878 F.2d 68, 70 (2d Cir. 1989) (same); United States v.
Brent, No. 3:05-CR-0120-P(1), 2011 WL 2633781, at *3 n.3 (N.D.
Tex. July 5, 2011) (“Courts have long recognized that estimating
a guideline range is not an exact science and that defense
counsel is not deficient for making a prediction that turns out
to be different from the sentence recommended by Probation.”).
Therefore, accepting as true Perkins’s allegation that trial
counsel incorrectly estimated his guideline range as 70-87
months, such an inaccurate prediction does not constitute
Moreover, the record shows that counsel acted strategically
in negotiating the plea agreement.
Trial counsel explained to
the court at the sentencing hearing, with Perkins present, that
the 87-month sentence for the grouped counts was a negotiated
compromise between the 60-month mandatory minimum sentence
Perkins then faced on Count I, and the heightened mandatory
minimum sentence that would have applied if the government
established Perkins’s prior felony drug offense under 21 U.S.C.
Perkins’s trial counsel negotiated the plea agreement to
preclude the government from filing a § 851 enhancement, which
would have resulted in a 120-month mandatory minimum sentence on
The parties agreed that 87 months on the grouped
counts was appropriate.
Although the stipulated sentence on the
grouped counts was 27 months greater than Perkins’s guideline
range, trial counsel’s strategic decision to advise Perkins to
accept the agreement was a reasonable exercise of his
See Strickland, 466 U.S. at 689-90;
Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (“Under the
first prong of Strickland, there is a strong presumption that
counsel’s strategy and tactics fall within the range of
reasonable professional assistance, and courts should avoid
second-guessing counsel’s performance with the use of
hindsight.” (internal quotation marks omitted)).
For these reasons, Perkins’s allegations, taken as true, do
not satisfy the first prong of the ineffective-assistance test.
Accordingly, Perkins is not entitled to relief on this
Failure to Inform Perkins of Constructive-Possession
In his final claim, Perkins asserts that trial counsel was
ineffective for failing to inform him that constructive
possession of a firearm requires both the power and intent to
exercise control over the firearm.
Construing his claim
liberally, Perkins suggests that counsel never explained to him
what the government would need to prove at trial to establish
that he had constructive possession of the four firearms in this
The court accepts Perkins’s allegation as true for
purposes of this motion.
Counts II and III charged Perkins with possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) and §
To satisfy the possession
requirements of § 922(g)(1) and § 924(c)(1), the government may
prove either actual or constructive possession of the firearm.
See United States v. Guzmán-Montañez, 756 F.3d 1, 8 (1st Cir.
2014); United States v. Rodriguez-Lozada, 558 F.3d 29, 41 (1st
“Actual possession is . . . immediate, hands-on
Guzmán-Montañez, 756 F.3d at 8 (citation
“Constructive possession can be established by
proving that the person has the power and intention of
exercising dominion and control over the firearm.”
(citation omitted); see also Henderson v. United States, --U.S. ---, 135 S. Ct. 1780, 1784 (2015).
Constructive possession may be sole or joint and does
not require actual ownership of the firearm. However,
a person must have actual knowledge of the weapon in
order to have constructive possession of it.
Establishing a person’s culpable knowledge, like
specific intent, often depends on circumstantial
evidence alone. For constructive possession of a
firearm in particular, the requisite knowledge and
intention can be inferred from circumstances such as a
defendant’s control over the area where the contraband
is found (e.g., defendant’s home or automobile).
Knowledge must be fairly inferrable from the
circumstances, however, and mere presence with or
proximity to weapons, or association with another who
possesses a weapon, is not enough. The record must
contain evidence of some action, some word, or some
conduct that links the individual to the firearm and
indicates that he had some stake in it, some power
United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir. 2014)
(internal quotation marks, citations, and alteration omitted).
Perkins contends that trial counsel was ineffective for
failing to inform him of the elements of constructive possession
of a firearm.
As discussed above, to show ineffective
assistance of counsel, a petitioner must demonstrate that
counsel’s performance was deficient and that the deficient
performance prejudiced the defense.
Strickland, 466 U.S. at
In the guilty plea context, to satisfy the prejudice
requirement the petitioner “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Hill, 474 U.S. at 59; see also Moreno-Espada v. United States,
666 F.3d 60, 66 (1st Cir. 2012) (petitioner failed to
demonstrate prejudice because he did not establish that but for
counsel’s conduct, he “would have foregone a guilty plea and run
the gauntlet of trial.”)
unaccompanied by either a claim of innocence or the articulation
of any plausible defense that could have been raised had a
defendant opted for a trial, are insufficient to demonstrate the
required prejudice under Strickland.”
Moreno-Espada, 666 F.3d
at 66-67 (internal quotation marks and alterations omitted).
Here, the court need not address whether trial counsel’s
conduct was constitutionally deficient, because Perkins has
failed to show a reasonable probability that he would not have
pleaded guilty if counsel had informed him of the law of
In fact, Perkins does not even allege
that, if counsel had informed him of the elements of
constructive possession of a firearm, he would have pleaded not
guilty and insisted on going to trial.
See Hill, 474 U.S. at
Moreover, any constructive-possession argument or defense
likely would not have succeeded at trial.
See id. at 59
(“[W]here the alleged error of counsel is a failure to advise
the defendant of a potential affirmative defense to the crime
charged, the resolution of the ‘prejudice’ inquiry will depend
largely on whether the affirmative defense likely would have
succeeded at trial.”).
Perkins acknowledged in a recorded
telephone call that all four firearms found during the search
were his, and Plunkett admitted that the two firearms found in
the safe belonged to Perkins.
Thus, the record clearly links
Perkins to the firearms and indicates that he had actual
knowledge of them.5
Additionally, the evidence is sufficient for
a jury to infer that Perkins had the power and intent to
exercise control over the firearms.
Therefore, any argument
that Perkins did not have constructive possession of the
firearms had no reasonable chance of success.
As such, it is
implausible for the court to conclude that Perkins would have
insisted on going to trial based on a meritless legal argument.
For these reasons, Perkins’s claim fails to satisfy the
prejudice prong of the test for ineffective assistance of
Accordingly, Perkins is not entitled to relief on his
final ineffective-assistance claim.
III. Evidentiary Hearing
A petitioner who files a § 2255 motion “is not entitled to
an evidentiary hearing as a matter of right.”
David, 134 F.3d
at 477 (citing United States v. McGill, 11 F.3d 223, 225 (1st
An evidentiary hearing is not warranted where (1)
the motion is facially inadequate; (2) the movant’s allegations,
even if true, do not entitle him to relief; or (3) the movant’s
allegations “state conclusions instead of facts, contradict the
record, or are inherently incredible.”
Id. (internal quotation
“[T]he petitioner bears the burden of
In assessing the record, the court does not consider
Perkins’s post-arrest statement that the government conceded it
would not use at trial.
establishing the need for an evidentiary hearing.”
v. United States, 802 F.3d 155, 167 (1st Cir. 2015) (quoting
McGill, 11 F.3d at 225).
Perkins does not request an evidentiary hearing, and the
record and pleadings in this case enable the court to decide his
motion without a hearing.
In deciding this motion, the court
has accepted Perkins’s allegations as true, to the extent not
contradicted by the record.
As set forth above, Perkins’s
allegations and the record in this case show that he is not
entitled to relief on either remaining ineffective-assistance
Thus, an evidentiary hearing is not warranted in this
Perkins requests that the court appoint counsel to assist
him in obtaining relief under § 2255.
Although Perkins has no
constitutional right to counsel in § 2255 proceedings, the court
may appoint counsel to a financially eligible person seeking
relief under § 2255 if the interests of justice so require.
18 U.S.C. § 3006A(a)(2)(B).
The First Circuit has indicated
that appointment of counsel is warranted where (1) the
petitioner has shown a fair likelihood of success on his
constitutional claim, (2) the claim is factually complex and
legally intricate, and (3) the facts are largely undeveloped and
appellant is severely hampered in his ability to investigate
See United States v. Mala, 7 F.3d 1058, 1063-64 (1st Cir.
Those factors are not present here.
allegations show that he cannot succeed on either ineffectiveassistance claim.
Second, his petition does not raise complex
Finally, Perkins’s claims do not depend on
“largely undeveloped” facts, id. at 1064, nor do they warrant an
See Bucci v. United States, 662 F.3d 18,
34 (1st Cir. 2011) (“Although petitioners have no constitutional
right to counsel in § 2255 proceedings, Rule 8(c) of the Rules
Governing Section 2255 Proceedings requires the appointment of
counsel if an evidentiary hearing is required.” (internal
Therefore, the interests of justice do not
warrant the appointment of counsel in this case.
For the foregoing reasons, Perkins’s petition for relief
under 28 U.S.C. § 2255 (doc. no. 1) and request for courtappointed counsel (doc. no. 7) are denied.
Because Perkins has
not made a substantial showing of the denial of a constitutional
right, the court declines to issue a certificate of
See 28 U.S.C. § 2253(c)(2); Rule 11(a), Rules
Governing Section 2255 Proceedings.
The clerk of court shall
enter judgment accordingly and close the case.
United States District Judge
February 14, 2017
Roger Perkins, pro se
Seth R. Aframe, Esq.
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