United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. MCCONNELL, JR., United States District Judge.
Prout has petitioned this Court pursuant to 28 U.S.C. §
2255 to vacate, set aside, or correct his judgment of
conviction, entered after he pled guilty to robbery
conspiracy, possession of a firearm in furtherance of a crime
of violence and drug trafficking crime, and being a felon in
possession of a firearm. He claims that he is entitled to a
new trial based on ineffective assistance of counsel. The
Court finds that Mr. Prout's Motion to Vacate lacks merit
and thus DENIES his petition.
23, 2014, a federal grand jury sitting in the District of
Rhode Island indicted Mr. Prout and another individual on
charges of robbery conspiracy (Count I), heroin conspiracy
(Count II), possession of a firearm in furtherance of a crime
of violence and drug trafficking crime (Count III), and being
a felon in possession of a firearm (Count IV). The charges
arose from a "sting" operation in which Mr. Prout,
his co-defendant, and a confidential informant
("CI") planned to rob a heroin stash house.
Pursuant to a written Plea Agreement, Mr. Prout pled guilty
to Counts I, III, and IV. Count II was dismissed by the
Government. Mr. Prout was sentenced on March 9, 2016, to a
term of imprisonment of 156 months. An Amended Judgment was
entered on March 11, 2016. Under the terms of the Plea
Agreement, Mr. Prout did not appeal the judgment of
conviction or sentence.
Prout timely filed the instant Motion to Vacate on March 10,
2255 provides for post-conviction relief only if the court
sentenced a petitioner in violation of the Constitution or
lacked jurisdiction to impose the sentence, if the sentence
exceeded the statutory maximum, or if the sentence is
otherwise subject to collateral attack. United States v.
Addonizio, 422 U.S. 178, 185 (1979); David v. United
States, 134 F.3d 470, 474 (1st Cir. 1998). In attempting
to collaterally attack his sentence, the petitioner bears the
burden of demonstrating "exceptional circumstances"
that warrant redress under § 2255. See Hill v.
United States, 368 U.S. 424, 428 (1962); Mack v.
United States, 635 F.2d 20, 26-27 (1st Cir. 1980). For
example, an error of law must constitute a "fundamental
defect which inherently results in a complete miscarriage of
justice." Hill, 368 U.S. at 428; accord
David, 134 F.3d at 474.
Sixth Amendment guarantees defendants the right to effective
assistance of counsel. Lema v. United States, 987
F.2d 48, 51 (1st Cir. 1993)(citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). However,
"[t]he Constitution does not guarantee a defendant a
letter-perfect defense or a successful defense; rather, the
performance standard is that of reasonably effective
assistance under the circumstances then obtaining."
United States v. Natanel, 938 F.2d 302, 309-10 (1st
defendant who claims that he was deprived of his Sixth
Amendment right to effective assistance of counsel must
(1) that his 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, 466 U.S. at 687-88, 694; see also
United States v. Manon, 608 F.3d 126, 131 (1st Cir.
2010)(same). In assessing the adequacy of counsel's
performance, a defendant '"must identify the acts or
omissions of counsel that are alleged not to have been the
result of reasonable professional judgment, ' and the
court then determines whether, in the particular context, the
identified conduct or inaction was 'outside the wide
range of professionally competent assistance.'"
Manon, 608 F.3d at 131 (quoting Strickland,
466 U.S. at 690). With respect to the prejudice requirement
under Strickland, a "reasonable probability is
one sufficient to undermine confidence in the outcome. ... In
making the prejudice assessment, [the court] focuses on the
fundamental fairness of the proceeding." Id.
"Unless a defendant makes both showings, it cannot be
said that the conviction ... resulted from a breakdown in the
adversary process that renders the result unreliable."
Strickland, 466 U.S. at 687; see also
Reyes-Vejerano v. United States, 117 F.Supp.2d 103, 107
(D.P.R. 2000)("The petitioner has the burden of proving
both prongs of this test, and the burden is a heavy
one."). "The benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result." Strickland, 466 U.S. at 686.
Instructs that "judicial scrutiny of counsel's
performance must be highly deferential." Id. at
689. The court "must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action 'might be considered sound trial
strategy.'" Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). Moreover,
"[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment." Id. at 691. Finally, "[a] fair
assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time." Id. at 689.
same principles apply in the context of guilty pleas. See
Hill v. Lockhart, 474 U.S. 52, 57 (1985). The
Hill Court held that "the two-part
Strickland v. Washington test applies to challenges
to guilty pleas based on ineffective assistance of
counsel." Id. at 58; see also Padilla v.
Kentucky, 559 U.S. 356, 371 n.12 (2010)("In
Hill, the Court recognized-for the first time-that
Strickland applies to advice respecting a guilty
plea."). The first prong of the Strickland'
test is nothing more than a restatement of the standard of
attorney competence described above. Hill, 474 U.S.
The second, or "prejudice, " requirement, on the
other hand, focuses on whether counsel's constitutionally
ineffective performance affected the outcome of the plea
process. In other words, in order to satisfy the
"prejudice" requirement, the defendant 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.
Id. at 59; see also Lafler v. Cooper, 566
U.S. 156, 163 (2012) ("In the context of pleas a
defendant must show the outcome of the plea process would
have been different with competent advice."). The
Hill Court reiterated that, as stated in
Strickland, "these predictions of the outcome
at a possible trial, where necessary, should be made
objectively ...." 474 U.S. at 59-60; see also
Padilla, 559 U.S. at 372 (noting that "to obtain
relief on this type of claim, a petitioner must convince the
court that a decision to reject the plea bargain would have
been rational under the circumstances").
noted above, Mr. Prout filed the Motion to Vacate
(ECF No. 78) on March 10, 2017. He subsequently filed a
memorandum in support of his motion (ECF No. 91) and an
amendment/clarification of one of the claims in the original
Motion to Vacate (ECF No. 97). The Government's objected
(ECF No. 96) and Mr. Prout filed a reply (ECF No. 99) to the
Prout alleges that he received ineffective assistance of
counsel during the pretrial and sentencing proceedings. He
raises six grounds for relief,  all of which claim that counsel
was ineffective for failing to make certain arguments.
Several of Mr. Prout's arguments are based on the Hobbs
Act, 18 U.S.C. § 1951. He also contends that the
Government "manufactured" jurisdiction over the
§ 924(c) charge and that counsel failed to object; that
counsel failed to argue that the conduct of the Bureau of
Alcohol, Tobacco, Firearms and Explosives ("ATF')
constituted racial profiling and discriminatory law
enforcement, " and that counsel should have challenged
the Court's enhancement of his sentence as a career
offender. The Court will address Mr. Prout's Hobbs Act
arguments together, as they tend to overlap. His remaining
claims will be discussed separately.
Hobbs Act Allegations
Hobbs Act provides that:
Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so
to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do
anything in violation of this section shall be fined under
this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a). Mr. Prout claims that counsel was
ineffective for failing to argue that: (i) the
Government's "broad expansion of [the] Hobbs Act
under 1951(a) exceeded constitutional limits expressed by
Congress upon enactment, " ECF No. 78 at
(2) a "statute enacted pursuant to the Commerce Clause
does not constitutional[ly] reach non-commercial and
non-economic conduct that is purely intrastate, "
id. at 5; and (3) "the Hobbs Act commerce
effect was not proven where the Government failed to prove
depletion of any assets o[f] business engaged in interstate
commerce, " id. at 8.
Prout relies primarily on the United States Supreme
Court's decisions in United States v. Lopez, 514
U.S. 549 (1995), and United States v. Morrison, 529
U.S. 598 (2000), for his arguments that the Hobbs Act
did not apply to the circumstances presented here. Fictitious
robbery of a fictitious drug dealer at a fictitious drug
stash house does not regulate economic or commercial
activity, nor does it show a relationship, attenuated or
otherwise, between the regulated activity and persons or
things in interstate commerce-and definitely does not invoke
any commerce power necessary in order to regulate intrastate
ECF No. 91 at 60. Mr. Prout's reliance on Lopez and
Morrison is misplaced.
Lopez, the Supreme Court held that the Gun-Free
School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A),
exceeded the authority of Congress "[t]o regulate
Commerce ... among the several States ...." 514 U.S. at
551 (quoting U.S. Const, art. I, § 8, cl. 3)(alterations
in original). The Court stated: "The Act neither
regulates a commercial activity nor contains a requirement
that the possession be connected in any way to interstate
tracing the history of the Supreme Court's Commerce
Clause jurisprudence, see Id. at 553-58, the
Lopez Court stated that the Court had
"identified three broad categories of activity that
Congress may regulate under its commerce power, "
id. at 558.
First, Congress may regulate the use of the channels of
interstate commerce. Second, Congress is empowered to
regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities.
Finally, Congress' commerce authority includes the power
to regulate those activities having a substantial relation to
Id. at 558-59 (internal citations omitted). In
analyzing 922(q)(1)(A), the Court focused on the third
category, whether the statute could be sustained "as a
regulation of an activity that substantially affects
interstate commerce." Id. at 559. The Court
Section 992(q) is a criminal statute that by its terms has
nothing to do with "commerce" or any sort of
economic enterprise, however broadly one might define those
terms. Section 922(q) is not an essential part of a larger
regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were
regulated. It cannot, therefore, be sustained under our cases
upholding regulations of activities that arise out of or are
connected with a commercial transaction, which viewed in the
aggregate, substantially affects interstate commerce.
Id. at 561 (footnote omitted). Further, "§
922(q) contains no jurisdictional element which would ensure,
through case-by case inquiry, that the firearm possession in
question affects interstate commerce." Id.', see
also Id. at 562 (noting that "§ 922(q) has no
express jurisdictional element which might limit its reach to
a discrete set of firearm possessions that additionally have
an explicit connection with or effect on interstate
the Supreme Court in Morrison held that Congress
lacked authority to enact a provision of the Violence Against
Women Act ("VAWA"), 42 U.S.C. § 13981, which
provided a federal civil remedy for victims of gender-based
violence. 529 U.S. at 601-02. The Morrison Court
relied on the Lopez framework for its analysis.
Id. at 609. Again the Court found that the VAWA did
not regulate activity that was economic in nature, nor did it
contain a jurisdictional element:
With these principles underlying our Commerce Clause
jurisprudence as reference points, the proper resolution of