United States v. Lasseque

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH CHIEF JUDGE

         Defendant/Movant David Lasseque has filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“Motion to Vacate”) (ECF No. 102) in the above-captioned matter. The Government has objected to the Motion. (See Resp. in Opp'n to Mot. to Vacate (“Resp.”) (ECF No. 104).) The Court has determined that no hearing is necessary. For the reasons that follow, the Motion is DENIED.

         I. Background and Travel

         Following a two-day jury trial, on June 24, 2014, Lasseque was found guilty of one count of bank robbery and one count of conspiracy to commit bank robbery. (Mot. to Vacate 1.) He was sentenced on September 26, 2014, to a total of 140 months' imprisonment, to be followed by three years of supervised release. (Id.)

         Lasseque appealed, arguing that the Court erred in denying his motion for judgment of acquittal and in imposing certain sentencing enhancements. (Id. at 2.) In a Judgment issued on November 18, 2015, the First Circuit denied the appeal. (Id.) The appellate court's Mandate issued on December 10, 2015. The United States Supreme Court subsequently denied Lasseque's petition for writ of certiorari. (Mot. to Vacate 2.)

         On September 21, 2016, ^[1] Lasseque timely filed the instant Motion. (Id. at 13.)

         II. Law

         A. Section 2255

         Section 2255 provides in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         Generally, the grounds justifying relief under 28 U.S.C. § 2255(a) are limited. A court may grant relief pursuant to § 2255 in instances where the court finds a lack of jurisdiction, a constitutional error, or a fundamental error of law. United States v. Addonizio, 442 U.S. 178, 185 (1979). “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Moreover, § 2255 is not a substitute for direct appeal. Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994)(citations omitted).

         B. Procedural Default

         “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice,' or that he is ‘actually innocent'” of the crimes for which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998)(internal citations omitted); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986). “[C]ause” consists of “some objective factor external to the defense . . . .” Carrier, 477 U.S. at 488; see also Coleman, 501 U.S. at 753 (noting that the Carrier Court “explained clearly that ‘cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him”). In order to demonstrate prejudice, “the [h]abeas petitioner must show ‘not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Carrier, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982))(alteration in original); see also Derman v. United States, 298 F.3d 34, 45 (1st Cir. 2002)(“The showing of prejudice needed to cure a procedural default generally requires a habeas petitioner to demonstrate that there is a reasonable probability that the result of the trial would have been different absent the error. The question is not whether the petitioner, qua defendant, would more likely have received a different verdict had the error not occurred, but whether he received a fair trial, understood as a trial worthy of confidence, notwithstanding the bevue.”)(internal citations and quotation marks omitted). The “actual innocence” standard established by the Supreme Court in Carrier “requires the habeas petitioner to show that a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quotation marks omitted). To establish the requisite probability, “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. Moreover, a credible claim of actual innocence “requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. at 324. “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623.

         C. Strickland

         The 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 Cir. 1991).

         A defendant who claims that he was deprived of his Sixth Amendment right to effective assistance of counsel must demonstrate:

(1) that [his] counsel's representation 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. 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.'” United States v. Manon, 608 F.3d 126, 131 (1st Cir. 2010)(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] focus[es] on the fundamental fairness of the proceeding.” Id. (internal citations and quotation marks omitted). “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, 106 (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.

         Strickland instructs that “[j]udicial scrutiny of counsel's performance must be highly deferential.” Id. at 689; see also Id. (“It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”). 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 ...