United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. MCCONNELL, JR., UNITED STATES DISTRICT JUDGE
Marandola has petitioned this Court under 28 U.S.C. §
2255 to vacate, set aside, or correct his judgment of
conviction, entered after he pleaded guilty to one count of
conspiracy to commit bank fraud and one count of aggravated
identity theft. He now claims that the Court should vacate
his conviction because his plea was not knowing, voluntary,
and intelligent. The Co\irt has determined that no hearing is
necessary. The Court finds that Mr. Marandola's Motion to
Vacate (ECF No, 172) is procedurally barred and thus
DISMISSES his petition.
federal grand jury sitting in the District of Rhode Island
indicted Mr. Marandola on charges of conspiracy to commit
bank fraud, (Count l), bank fraud (Counts 2-6), wire fraud
(Counts 7-9), and aggravated identity theft (Counts 10,
12-13, 15-16, and 19).
Maranclola pleaded guilty to Counts 1 and 16, in exchange for
the Government's agreement to dismiss the remaining
co\mts. The Court sentenced him to two consecutive
twenty-four-month terms of imprisonment and three years'
supervised release on each count, to run concurrently. Mr.
Marandola did not appeal. Mr. Marandola timely filed this
Motion to Vacate.
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 trying
collaterally to attack his sentence, the petitioner bears the
burden of proving "exceptional circumstances" that
call for 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 be 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.
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
Colenwn v. Thompson, 501 U.S. 722, 750 (1991);
Murray v. Carrier, 477 U.S. 478, 496 (1986).
"Cause" consists of "some objective factor
external to the defensefj" Carrier, 477 U.S. at
488; see also Coleman, 501 U.S. at 753 (noting that,
in Carrier, "[w]e explained clearly that
'cause' under the cause and prejudice test must be
something externals the petitioner, something that
cannot fairly be attributed to him"). To show prejudice,
the "habeas 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
(l982))(alteration in original); see also Derman v.
United States, 298 F.3cl 34, 45 (1st Cir. 2002)C'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 defendant must show both cause and prejudice.
Carrier, 411 U.S. at 494; Derman, 298 F.3d
at 45 (noting that petitioner bears burden of showing both
cause and prejudice).
"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. Velo, 513 U.S. 298, 327
(1995). To show 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. at 327. 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. The standard is "demanding and
permits review only in the 'extraordinary'
case." House v. Bell 547 U.S. 518, 538 (2006)
(quoting Schlup, 513 U.S. at 327).
'"[A]ctual innocence' means factual innocence,
not mere legal insufficiency." Bousley, 523
U.S. at 623 (citing Sawyer v. Whitley, 505 U.S. 333,
339 (1992)). "In cases where the Government has forgone
more serious charges in the course of plea bargaining,
petitioner's showing of actual innocence must also extend
to those charges." Id. at 624.
noted above, Mr. Marandola filed the Motion to Vacate (ECF
No. 172), the Government then responded (ECF No. 184), and
Mr. Marandola filed a reply ECF No. 189.
Marandola alleges that he incorrectly understood the elements
of the aggravated identity theft charge to which he pleaded
guilty. ECF No. 172 at 3. He also argues that he did not
understand the statute's interpretation. Id. As
a result, he contends, his plea was not knowing, voluntary,
and intelligent. Id. Mr. Maranclola bases his
argument on the fact that when he entered his plea "he
relied ... on a statute that the First Circuit, subsequently,
construed as ambiguous . . .." Id. at 4. The
Government responds first that Mr. Marandola has procedurally
defaulted his claim by not raising it on direct appeal, and,
second, that the claim fails on the merits. ECF No. 184 at
1-2, 5-6. Before the Court may consider the merits of Mr.
Marandola's claim, however, it must determine whether it
is properly before the Court.
Marandola argues that "a Petitioner in federal custody,
may attack his conviction and sentence on the grounds that it
is in violation of the United States Constitution, was
imposed without jurisdiction, or exceeded the maximum penalty
under U.S.C. §2255." ECF No. 189 at 1-2; see
also 28 U.S.C. § 2255(a). That said, the Supreme
ha[s] strictly limited the circumstances under which a guilty
plea may be attacked on collateral review. It is well settled
that a voluntary and intelligent plea of guilty made by an
accused person, who has been advised by competent counsel,
may not be collaterally attacked. And even the voluntariness
and intelligence of a guilty plea can be attacked on
collateral review only if first challenged on direct ...