Dennis Carlsen v. USA CV-04-81-B 05/07/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dennis Carlsen

Civil No. 04-81-B Opinion No.

United States of America

O R D E R

Dennis Carlsen pleaded guilty to three violations of

(g)(1) on February 28, 2002. He was later sentenced

to a prison term of 151 months under the Armed Career Criminal

Act ("ACCA"),

(e)(1). His appeal challenging his

sentence on various grounds was rejected on October 31, 2002.

His petition for certiorari raising the same arguments was denied

on March 6, 2003. He has now filed a motion to vacate his

conviction and sentence pursuant to

. For the

reasons set forth in this order, I deny his motion.

ANALYSIS

A. Ground 1

In determining that Carlsen was subject to the ACCA, I

relied on a prior conviction for possession of a controlled substance with intent to distribute. Carlsen argues that I erred

in relying on this conviction because the sentencing court lacked

jurisdiction over the charge and his guilty plea was elicited in

violation of state and federal law. Carlsen is not entitled to

use the current proceeding to collaterally attack his state court

convictions. See Daniels v. United States,

(2001) .

Accordingly, I reject this ground for relief.1

B. Ground 2

Carlsen asserts two grounds for relief under this heading.

He first claims that I erred in using a conviction for assault by

means of a dangerous weapon to enhance his sentence. He argues

that I could not consider this conviction to enhance his sentence

because the government did not give him notice of its intention

to rely on the conviction before he pleaded guilty. Carlsen

litigated and lost this argument on direct appeal. He cites no

new facts or legal arguments that warrant a reexamination of this

ruling. Accordingly, he may not use this argument in seeking

relief under § 2255. See Argencourt v. United States,

, 16 n.1 (1st Cir. 1996).

1 Carlsen may seek reconsideration of this Order if he succeeds in having the conviction vacated.

- 2 - Carlsen also argues that his attorney was ineffective

because he failed to consult with Carlsen before he rejected an

offer at the sentencing hearing to allow Carlsen to withdraw his

guilty pleas. To establish an ineffective assistance of counsel

claim, Carlsen must demonstrate "(1) that 'counsel's representa­

tion 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.'"

Mello v. DiPaulo,

(1st Cir. 2002) guoting

Strickland v. Washington,

(1984) . Carlsen

cannot satisfy either reguirement.

Counsel's behavior was not unreasonable because, given the

overwhelming evidence of Carlsen's guilt on the underlying

charges, no rational person would have accepted the offer, making

consultation between Carlsen and his counsel on the offer

unnecessary. For the same reason, counsel's failure to consult

with Carlsen did not prejudice Carlsen. Accordingly, I reject

both arguments.

C. Grounds 3 and 6

Carlsen claims that his counsel was ineffective because he

failed to produce evidence at the sentencing hearing that would

- 3 - have caused me to treat two of his prior burglary convictions as

a single conviction for sentencing purposes. He also argues that

I erred in refusing to treat the two convictions as a single

offense. The short answer to these arguments is that I did not

count the burglary convictions as two distinct, separate offenses

when sentencing Carlsen. Thus, his first argument is moot and

his second argument is based upon a mistaken factual premise.

Accordingly, I reject Ground 3 and 6.

D. Ground 4

Carlsen next argues that I erred in failing to look behind

the burglary convictions in determining whether either conviction

could be considered a crime of violence under the ACCA. He

asserts that the burglary convictions do not gualify as crimes of

violence because both burglaries involved "a seasonal remote

campground, located in a wilderness area far from human

habitation" and Carlsen entered the building "in the dead of

winter, in snowed conditions granting no vehicle access." I

reject this argument for two related reasons. First, it would

reguire me to look beyond the statute on which the burglary

convictions are based, which, under the circumstances of this

case, is contrary to the categorical approach that Supreme Court

- 4 - precedent requires. See, e.g., Taylor v. United States,

(1990). Second, Carlsen would not be entitled to relief

even if I were to adopt his suggested approach to the issue

because the facts he cites in his petition qualify the burglaries

as crimes of violence. See

(ACCA's reference to

burglary includes burglaries of unoccupied buildings).

Accordingly, I reject Ground 4.

E. Grounds 5 and 10

In Grounds 5 and 10, Carlsen asserts generalized claims that

his counsel was ineffective. Construing these claims generously,

he asserts that his counsel merely put on a show of effective

representation while constantly urging him to cooperate with the

government. This is not the unusual case in which an ineffective

assistance of counsel claim can be maintained without making

specific inquiries into counsel's actual performance and the

prejudice that results. Carlsen's generalized expressions of

dissatisfaction with his counsel's performance will not support

an ineffective assistance of counsel claim. See United States v.

Cronic,

, 659 n.2 (1984). Accordingly, I also reject

Grounds 5 and 10.

- 5 - F. Ground 7

Carlsen argues in Ground 7 that the court erred in assigning

him one point for a shoplifting conviction. He does not explain

why this determination was erroneous. More important, the

alleged error cannot be a basis for relief under § 2255 because I

determined his criminal history category on the basis of his

status as an armed career criminal rather than on the criminal

history points that otherwise would have been attributed to him

under the sentencing guidelines. Accordingly, I reject this

ground for relief.

G. Grounds 8 and 9

Carlsen claims that he is actually innocent of being an

armed career criminal because the convictions that I used to

determine his eligibility for an ACCA adjustment are either

invalid or are uncountable. As I have already explained,

Carlsen's challenges to the convictions that I used to determine

his status under the ACCA are meritless.

Carlsen also claims that he is actually innocent of the §

922(g)(1) violations to which he pleaded guilty. I reject this

ground for relief because Carlsen waived any right to challenge

the sufficiency of the evidence supporting his guilt of these

- 6 - charges when he pleaded guilty. See United States v. Cruz-

Rivera,

(1st Cir. 2004); United States v. Bahhur,

(6th Cir. 2000). Accordingly, I reject Grounds

8 and 9.

CONCLUSION

For the reasons set forth in this order, Carlsen's § 2255

motion is denied.

SO ORDERED.

Paul Barbadoro Chief Judge

May 7, 2 004

cc: Dennis Carlsen, pro se Peter Papps, Esg.

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