Francois v. United States

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH, Chief Judge.

         Roldy Francois (“Petitioner”) has filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Motion”). (ECF No. 157.) He subsequently submitted two supplemental memoranda in support of his Motion. (ECF Nos. 168 and 172.) The Second Supplemental Memorandum (ECF No. 172) raised a claim under Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), which the Court reserves ruling on and will address in a separate order. The United States filed an Objection to Petitioner’s Motion (ECF No. 169), to which Petitioner filed a Reply (ECF No. 171). For the reasons set forth below, Petitioner’s Motion is DENIED.

         I. Background

         On March 27, 2009, a man named Efrain Baez reported a briefcase containing his social security card and birth certificate stolen. Less than one month later, Florida issued Petitioner a driver’s license in Baez’s name, but bearing a picture of Petitioner. Petitioner used Baez’s identity on at least four occasions to purchase guns. He identified himself as “Efrain Baez” on Alcohol, Tobacco, and Firearm (“ATF”) Form 4473 and falsely certified that he had never been convicted of a felony. Evidence also indicated that Petitioner used Baez’s identity when he was cited for speeding and at a firing range. On February 16, 2010, Petitioner went to the Providence Police Department and, continuing to use Baez’s identity, reported two firearms stolen. A detective later recognized Petitioner as Roldy Francois. On March 16, 2010, law enforcement apprehended Petitioner after a tense, six-hour stand-off where Petitioner threatened to shoot either one of the officers or himself.

         After a jury trial, Petitioner was convicted of being a felon in possession of firearms, possession of a firearm with an obliterated serial number, making false statements in connection with the acquisition of firearms, possession of an identification document with the intent to defraud the United States, and aggravated identity theft. Petitioner was sentenced to a total of 164 months of incarceration. On appeal, the First Circuit affirmed the convictions, but found that Petitioner’s sentence for Counts 10-13 exceeded the statutory maximum. United States v. Francois, 715 F.3d 21, 24 (1st Cir. 2013). The First Circuit vacated his sentence and remanded for resentencing on all seventeen counts. Id.

         At resentencing, this Court imposed a revised sentence of 144 months imprisonment followed by 36 months of supervised release. Petitioner now files his Motion under 28 U.S.C. § 2255, arguing that: 1) his trial counsel was ineffective for failing to sufficiently investigate his mental health history; 2) his counsel at resentencing was ineffective for failing to present mitigating mental health evidence; 3) his appellate counsel was ineffective for failing to challenge whether the jurors improperly based their decision to convict him of aggravated identity theft on misdemeanor charges; and 4) his appellate counsel was ineffective for failing to challenge the sufficiency of evidence for his aggravated identity theft conviction.

         II. Discussion

         A. Ineffective Assistance of Counsel

         A petitioner who claims he was deprived of his Sixth Amendment right to effective assistance of counsel must demonstrate: 1) “that counsel’s performance fell below an objective standard of reasonableness, ” and 2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). In assessing the adequacy of counsel’s performance, the Court looks to “prevailing professional norms.” Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994). All that is required is a level of performance that falls within generally accepted boundaries of competence and provides reasonable assistance under the circumstances. Id. “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, ” avoiding “the distorting effects of hindsight.” Strickland, 466 U.S. at 689. “[I]t is all too easy for a court, examining counsel’s defense after it has proven unsuccessful, to conclude that a particular act or omission was unreasonable.” Id. Here, Petitioner’s claims of ineffective assistance of counsel do not satisfy the standard to grant relief.

         1. Counsel During Trial (William Dimitri)

         Petitioner’s first claim is that his trial counsel, William Dimitri, failed to sufficiently investigate mitigating mental health information prior to trial. However, Petitioner’s first court-appointed attorney, against whom Petitioner filed a complaint and who successfully moved to withdraw, requested a mental health evaluation that was conducted at the Wyatt Detention Facility. (Pet’r’s Mot. to Vacate 7, ECF No. 168.) Decisions regarding the extent of an attorney’s investigation “must be directly assessed for reasonableness in all the circumstances.” Wiggins v. Smith, 539 U.S. 510, 533 (2003) (quoting Strickland, 466 U.S. at 691). With a presumption of reasonableness, the omission of requesting a second, duplicative test lies within the boundaries of competence.

         Next, Petitioner contends that Dimitri provided ineffective assistance of counsel at the sentencing stage of the trial by not presenting the mitigating evidence of Petitioner’s mental health issues. However, the Presentence Report (“PSR”), in full view of the Court, contained great detail of Petitioner’s troubled upbringing, mental health evaluation at the Wyatt Detention Facility, as well as his diagnoses of Depressive Disorder and Post-Traumatic Stress Disorder (“PTSD”). Moreover, trial counsel reminded the Court of the relevant information pertaining to Petitioner’s mental health in a Motion for Sentence Variation: “He has lost family members in earthquakes, has been diagnosed with Depressive Disorder and post-traumatic stress disorder and has not only suicide ideation but has attempted suicide in the past.” (Pet’r’s Mot. For Sentence Variation 5, ECF No. 108.)

         Once again, at the sentencing hearing, Dimitri reiterated the relevance of Petitioner’s mental health issues:

[H]is refusal to surrender was hardly the act of someone who was rational in his thinking, hardly the act and conduct of a reasonable person. And it’s clearly more consistent, his conduct on that day was clearly more consistent with that of someone who was ...