United States District Court, D. Rhode Island
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 ...