DURE v. U.S.

127 F. Supp.2d 276 (2001) | Cited 0 times | D. Rhode Island | January 11, 2001


Jean Dure has filed a motion, pursuant to 28 U.S.C. § 2255, tovacate or correct his sentence. For reasons explained below, themotion is denied.

Facts and Background

On February 2, 1998, Dure pled guilty to charges of conspiringto distribute cocaine and attempting to possess cocainewith intent to distribute it in violation of21 U.S.C. § 841(a)(1) and (b)(1)(A). Dure received concurrent sentences of135 months on each of the two charges. That sentence wasaffirmed on appeal. United States v. Dure, 181 F.3d 81 (1stCir. 1999) (table) (text of unpublished decision available at1999 WL 525933).

Dure makes four claims in support of his § 2255 motion. Theyare:

1. That the Court erred in assessing criminal history points pursuant to U.S.S.G. § 4A1.1(d) on the ground that Dure committed the offenses of conviction while on probation.

2. That, in calculating Dure's base offense level, the Court erred in holding him responsible for the 5 kilograms of cocaine that was the subject of the conspiracy.

3. That the Court erred in reducing Dure's net offense level by two levels rather than three levels for acceptance of responsibility. See U.S.S.G. § 3E1.1.

4. That Dure's counsel was ineffective during plea negotiations and in sentencing.


I. Section 2255

The relevant portion of § 2255 provides: 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.

In order to be cognizable under § 2255, claims based on otherthan constitutional or jurisdictional grounds must presentexceptional circumstances that justify permitting a collateralattack. Stated another way, the alleged error must amount to "afundamental defect which inherently results in a completemiscarriage of justice" or "an omission inconsistent with therudimentary demands of fair procedure." Hill v. United States,368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Section2255 is not a substitute for direct appeal. United States v.Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816(1982). Accordingly, errors warranting a reversal on directappeal will not necessarily support a collateral attack. Knightv. United States, 37 F.3d 769, 772 (1st Cir. 1994). See UnitedStates v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60L.Ed.2d 805 (1979).

II. The Alleged Sentencing Errors

Dure's claims that his guideline range was incorrectlycalculated do not warrant relief for several reasons.

First, since claims of errors in calculating guidelinesentencing ranges do not raise constitutional or jurisdictionalissues, the alleged errors must satisfy the "exceptionalcircumstances" test in order to be cognizable under § 2255. Theerrors claimed by Dure fall far short of satisfying thisstandard.

Second, Dure is precluded from raising these claims because hefailed to assert them on appeal. A defendant who fails to raiseissues on direct appeal is procedurally barred from raising themin a subsequent § 2255 motion unless the defendant demonstrates"cause and prejudice" or "actual innocence." E.g., Brache v.United States, 165 F.3d 99, 102 (1st Cir. 1999). Dure's attemptto establish "cause" by asserting that his appellate counsel wasineffective in failing to pursue the alleged errors, on appeal,is insufficient for reasons stated below.

Third, in any event, Dure's claims of sentencing error arewithout merit.Guidelines § 4A1.1(d) requires that two points be added to adefendant's criminal history "if the defendant committed theinstant offense while under any criminal justice sentence,including probation . . ." U.S.S.G. § 4A1.1(d). The presentencereport clearly shows that on November 19, 1992, Dure received asuspended sentence and was placed on probation for a period offive years by the Rhode Island Superior Court for leaving thescene of an accident in which personal injury resulted. Theindictment, in this case, describes the offenses to which Durepled guilty as having been committed on or before October 29,1997, which was within the five-year probationary period.Therefore, Dure's bald and unsupported assertion that he was,"[I]n effect discharged from * * * the [Rhode Island] case usedto enhance his criminal history, in September of 1997"(Petitioner's Memorandum in Support of § 2255 Motion at 1), iscontradicted by the record.

Dure's claim that he should not have been held responsible forthe five kilograms of cocaine that was the object of theconspiracy also lacks merit. A participant in a drug conspiracy"is responsible not only for the drugs he actually handled orsaw but also for the full quantity of drugs that he reasonablycould have foreseen to be embraced by the conspiracy he joined."United States v. Rodriguez, 162 F.3d 135, 149 (1st Cir. 1998).In this case, distribution of a five-kilogram quantity ofcocaine was not only foreseeable, it was the express object ofthe conspiracy. In fact, in his plea agreement, Dureacknowledged his awareness of the quantity involved.

Finally, Dure's argument that he was entitled to a three-levelreduction for acceptance of responsibility does not pass muster.Guideline § 3E1.1(b)(2) provides for a three-level reduction forpleading guilty only if the defendant "timely notif[ies]authorities of his intention to enter a plea of guilty, therebypermitting the government to avoid preparing for trial andpermitting the Court to allocate its resources efficiently."Dure did not satisfy this requirement because he did not signhis plea agreement until three days before the date scheduledfor jury impanelment. By that time, the government had completedits trial preparations; the jurors had been summoned and theCourt had finalized its trial schedule.

III. The Ineffective Assistance Claim

A defendant who claims that he was deprived of his SixthAmendment right to effective assistance of counsel mustestablish that counsel's performance fell below an objectivestandard of reasonableness and that he was prejudiced bycounsel's deficiency. Strickland v. Washington, 466 U.S. 668,687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

An attorney's performance is deficient when it is "so inferioras to be objectively unreasonable." United States v. McGill,11 F.3d 223, 226 (1st Cir. 1993). The adequacy of a defenseattorney's representation is evaluated without "the distortingeffects of hindsight and in light of the circumstances as theyexisted at the time." Strickland, 466 U.S. at 689, 104 S.Ct.2052.

The defendant has the burden of identifying the specific actsor omissions that constitute the allegedly deficient performanceand presenting facts supporting his claim. Conclusoryallegations or factual assertions that are unsupported, fancifulor contradicted by the record, are insufficient. See Lema v.United States, 987 F.2d 48, 51-52 (1st Cir. 1993). See also,Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992)(summary dismissal of § 2255 motion proper where, inter alia,grounds for relief are based on bald assertions).

Dure's claims of ineffective assistance fall into twocategories. First, he faults counsel for not pursuing thealleged sentencing errors that are the subject of his motion.However, as already noted,there was no merit to those claims of error. Counsel cannot bedeemed ineffective for failing to pursue futile arguments. SeeVieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999), cert. denied,528 U.S. 1163, 120 S.Ct. 1178, 145 L.Ed.2d 1086 (2000).

The second category of claims consists of vague, unsupportedand conclusory allegations. For example, Dure asserts thatcounsel's inadequate performance during plea negotiations causedDure to be subjected to "the detrimental effects of a bad faithbargain." Petitioner's memorandum at 3. However, he offers noexplanation as to how his counsel allegedly was deficient. Nordoes he adequately explain or support any of the remainingallegations of ineffective assistance.


For all of the foregoing reasons, Dure's § 2255 motion isdenied.


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