Mumme v. United States

1

RYAN MUMME, Petitioner v. UNITED STATES OF AMERICA, Respondent

Nos. 1:17-cr-00171-NT, 1:21-cv-00183-NT

United States District Court, D. Maine

November 23, 2021

RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

John C. Nivison, U.S. Magistrate Judge.

Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. (Motion, ECF No. 150; Supplemental Motion, ECF No. 156.)^[1] Following a guilty plea, Petitioner was convicted of possessing child pornography; the Court sentenced Petitioner to ninety-six months in prison and a lifetime of supervised release. (Judgment, ECF No. 127.)

Petitioner asserts several grounds for relief, including that his attorney provided ineffective assistance of counsel during his suppression hearing and at the plea stage. The Government requests dismissal. (Response, ECF No. 161.)

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, deny Petitioner's request for relief, and dismiss Petitioner's motions.

Factual Background and Procedural History

In December 2017, Petitioner was indicted for possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and 2252A(a)(5)(b). (Indictment, ECF No. 2.) Petitioner subsequently filed a motion to suppress certain evidence. (ECF No. 29.) The Court held a hearing on the motion in May 2018. (Minute Entry, ECF No. 46.) The evidence at the suppression hearing, including law enforcement testimony and an audio recording and transcript of the exchange between law enforcement and Petitioner, revealed that three officers went to interview Petitioner at his residence in August 2015 in connection with their investigation of money Petitioner had wired to a person in the Philippines accused of producing child pornography. (Suppression Order at 1-3; ECF No. 53.) While the officers were speaking with Petitioner's father, Petitioner arrived in his vehicle and parked nearby. (Id. at 2-3.) Petitioner initially denied having viewed child pornography and refused to give the officers his computer but he ultimately gave the officers permission to enter the home to obtain his computer and admitted that a search of the device would reveal child pornography on the hard drive. (Id. at 4-6.) In June 2018, the Court denied the motion to suppress the evidence of Petitioner's statements and the evidence obtained as the result of Petitioner's interaction with law enforcement. (Suppression Order at 15.)

Later that month, Petitioner entered a guilty plea conditional on his right to appeal from the Court's ruling on the motion to suppress. (Change of Plea Hearing, ECF No. 58; Conditional Plea, ECF No. 59.) In December 2018, Petitioner filed a motion to withdraw his guilty plea primarily because he was dissatisfied with his attorney's performance at the suppression hearing. (Motion to Withdraw Guilty Plea, ECF No 76.) The Court held a hearing on the motion in February 2019 and at the hearing, Petitioner withdrew the motion to withdraw his guilty plea. (Minute Entry, ECF No. 85; Oral Withdrawal of Motion, ECF No. 86.) In April 2019, Petitioner renewed his motion to withdraw his guilty plea, (ECF No. 93), which the Court denied in May 2019. (Order, ECF No. 95). Petitioner's attorney subsequently withdrew as counsel and was replaced with a new attorney. (Motion to Withdraw, ECF No. 99; Order Granting Motion to Withdraw, ECF No. 115.)

In September 2019, the Court sentenced Petitioner to ninety-six months in prison to be followed by a lifetime of supervised release. (Judgment, ECF No. 127.) The First Circuit affirmed in January 2021. United States v. Mumme, 985 F.3d 25 (1st Cir. 2021). Petitioner subsequently filed a § 2255 motion and a supplemental motion. (Motion, ECF No. 150; Supplemental Motion, ECF No. 156.)

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 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 a petitioner demonstrates that counsel's representation “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). A 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 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. 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. Fourth Amendment Claims

Petitioner reasserts his Fourth Amendment challenge to the conduct of the officers when interviewing him and speaking with his father. Because Petitioner had a full and fair opportunity to litigate the issues at trial and on appeal, however, the claims are not cognizable on postconviction review given the limitations on the scope of the Fourth Amendment exclusionary rule as articulated by the Supreme Court in Stone v Powell, 428 U.S. 465 (1976). See Ray v. United States, 721 F.3d 758, 762 (6th Cir. 2013) (concluding that “free-standing Fourth Amendment claims cannot be raised in collateral proceedings under either § 2254 or § 2255”); Brock v. United States, 573 F.3d 497, 500 (7th Cir. 2009) (“This Court has determined that the principles of Stone apply equally to § 2255 motions”); United States v. Cook, 997 F.2d 1312, 1317 (10th Cir. 1993) (“Fourth Amendment violations are not reviewable in a § 2255 motion when...