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United States. v. Cucinotta

United States District Court, District of Rhode Island

August 18, 2014

UNITED STATES OF AMERICA
v.
ANTHONY CUCINOTTA, Defendant.

MEMORANDUM AND ORDER

WILLIAM E. SMITH, Chief Judge.

Pending before the Court is Defendant Anthony Cucinotta’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 52).[1] For the reasons that follow, Defendant’s motion is DENIED and his application under § 2255 is DISMISSED.

I. Background

In August 2012, Defendant signed a plea agreement in which he agreed to plead guilty to three counts: (1) possession with intent to distribute less than fifty kilograms of a mixture and substance containing a detectable amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) (Count 1); (2) possession of a firearm after having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. § 922(g)(1) (Count 2); and (3) possession of a firearm and ammunition after having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, also in violation of 18 U.S.C. § 922(g)(1) (Count 3). This Court accepted the plea and sentenced Defendant to a term of incarceration of 48 months.

In February 2014, Defendant filed this motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. To the extent that his application is decipherable, Defendant seems to assert three grounds for relief. In brief, Defendant asserts a claim for ineffective assistance of counsel based on several perceived failings by his attorney. Defendant also argues that his ownership of state medical marijuana and firearms licenses should have prevented his conviction. Finally, Defendant contends that some $6, 900 was stolen from him during the course of the proceedings against him. The Court addresses each of these arguments in turn.

II. Discussion

A defendant may move to vacate, set aside or correct sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, or [] the court was without jurisdiction to impose such sentence, or [] the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Because the defendant bears the burden of establishing the need for an evidentiary hearing, courts have held that evidentiary hearings are unnecessary “when a § 2255 motion (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.” United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993) (quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974)).

In other words, a “§ 2255 motion may be denied without a hearing as to those allegations which, if accepted as true, entitle the movant to no relief, or which need not be accepted as true because they state conclusions instead of facts, contradict the record, or are ‘inherently incredible.’”

McGill, 11 F.3d at 226 (quoting Shraiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984)). The Court concludes that Defendant’s assorted grounds for relief do not merit an evidentiary hearing.

A. Ineffective Assistance of Counsel

In his application, Defendant asserts a violation of the Sixth Amendment which guarantees defendants the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). In order for a defendant to prevail on an ineffective assistance of counsel claim, he “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment” and proffer evidence of such. Id. at 690. A defendant also “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.

Defendant’s allegations with regard to the perceived ineffectiveness of his attorney are conclusory and ultimately frivolous. Defendant asserts variously that he was abandoned by counsel, that there was a breach of duty by counsel and that counsel failed to file an appeal. He does not further elaborate on or substantiate these alleged acts or omissions in any way. Because Defendant presents no evidence of these allegations, no reference to how these allegations fall below the standard of reasonable professional judgment and no reference to how these allegations prejudiced him, these allegations are “inadequate on [their] face” and do not constitute grounds for relief.[2] McGill, 11 F.3d at 226 (quoting Moran, 494 F.2d at 1222).

B. State Permit and Certification

Defendant argues that his Rhode Island Department of Health medical marijuana permit prevents him from being charged, convicted and imprisoned for Count 1 under federal law because this permit allowed him to legally possess marijuana in Rhode Island.[3] Similarly, Defendant argues that his Rhode Island Department of Environmental Management pistol/revolver certification[4] prevents him from being charged, convicted and imprisoned for Counts ...


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