UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Roger Perkins

v. Civil No. 16-cv-288-LM Opinion No.

United States of America

O R D E R

Roger Perkins, proceeding pro se, moves under

for relief from his sentence for conspiracy to possess

with intent to distribute a controlled substance, possession of

a firearm by a convicted felon, and possession of a firearm in

furtherance of a drug trafficking crime. See United States v.

Perkins, 14-cr-104-LM (D.N.H. Nov. 3, 2015). In a previous

order (doc. no. 10), the court dismissed two of his claims.

Perkins further requests that the court appoint counsel to

assist him in obtaining relief.

Standard of Review

Under § 2255, a federal prisoner may ask the court to

vacate, set aside, or correct a sentence that “was imposed in

violation of the Constitution or laws of the United States.”

(a). The burden of proof is on the petitioner.

Wilder v. United States,

(1st Cir. 2015)

(citing David v. United States,

(1st Cir. 1998)). Once a prisoner requests relief under § 2255, the

district court must grant an evidentiary hearing unless “the

motion and the files and records of the case conclusively show

that the prisoner is entitled to no relief.”

(b); see also Owens v. United States,

(1st

Cir. 2007). If the district court does not hold an evidentiary

hearing, the allegations set forth in the petition are taken as

true “unless those allegations are merely conclusory,

contradicted by the record, or inherently incredible.” Owens,

(quoting Ellis v. United States,

(1st Cir. 2002)). Because Perkins is proceeding pro se, the

court construes his petition liberally. See Erickson v. Pardus,

(2007) (per curiam).

Background

On March 25, 2014, members of the Laconia Police Department

searched a residence that Perkins and co-conspirator Windyann

Plunkett leased together in Laconia, New Hampshire. Perkins was

under investigation for drug trafficking in the Laconia area.

According to the stipulated facts in the plea agreement,

officers found drugs and four firearms during their search of

Perkins’s residence. Two firearms were located on a closet

shelf in a back bedroom, and two firearms were discovered in a

safe that officers seized from the same bedroom closet.

2 Plunkett later admitted that the firearms located in the safe

belonged to Perkins. Cr. doc. no. 47 at 6.1 After his arrest,

in a recorded telephone call from jail, Perkins admitted that

all four firearms were his. Id. at 7.2

On July 21, 2015, Perkins pleaded guilty to one count of

conspiracy to possess with intent to distribute a controlled

substance in violation of

, 841(b)(1)(B)(iii)

(Count I), one count of possession of a firearm by a convicted

felon in violation of

(g)(1) (Count II), and one

count of possession of a firearm in furtherance of a drug

trafficking crime in violation of

(c)(1)(A)

(Count III). Perkins entered a plea agreement for a binding

term of imprisonment of 87 months on Counts I and II and 60

months on Count III, to be served consecutively, for a total of

147 months. Id. at 9.

1 “Cr. doc. no.” refers to document numbers in the docket of the underlying criminal proceeding (14-cr-104-LM). “Doc. no.” refers to document numbers in the instant proceeding.

2 According to the plea agreement, when asked at the police station “if the items located in the back bedroom were Plunkett’s,” Perkins reportedly “shook his head and stated ‘it’s all mine.’” Cr. doc. no. 47 at 6. Prior to changing his plea, Perkins had filed a motion to suppress this post-arrest statement. See cr. doc. no. 19. The court denied the motion as moot (cr. doc. no. 29 at 6 n.2) after the government agreed not to introduce that statement in its case-in-chief at trial. See cr. doc. no. 24 at 2.

3 On November 2, 2015, the court sentenced Perkins. The

presentence report (“PSR”) grouped Counts I and II for the

purposes of sentencing and applied the higher offense level

(Count I).3 Based on a total offense level of 21 and a criminal

history category of III, Perkins’s guideline sentencing range

for the grouped counts was 46-57 months. Cr. doc. no. 62 at 24.

Count I, however, carried a mandatory minimum sentence of five

years, so Perkins’s guideline term of imprisonment for the

grouped counts was 60 months. Id. The PSR did not calculate a

guideline range for Count III because, pursuant to

(c)(1)(A) and U.S.S.G. § 5G1.2(a), the statutory minimum

sentence of five years on Count III ran consecutive to any other

sentence imposed. Therefore, Perkins’s total guideline sentence

was 120 months: 60 months on Counts I and II and a consecutive

60-month sentence on Count III. Cr. doc. no. 74 at 5.

However, Perkins had agreed to a stipulated sentence of 147

months imprisonment: 87 months on Counts I and II and 60 months

on Count III. At the sentencing hearing, Perkins’s trial

counsel explained that he negotiated a sentence of 87 months on

Counts I and II because Perkins had a prior state felony drug

3 Perkins’s adjusted offense level for Count I was 24, and his adjusted offense level for Count II was 22. Cr. doc. no. 62 at 8-9. The court applied the higher offense level and then subtracted three levels for acceptance of responsibility, which yielded a total offense level of 21. Id. at 9.

4 conviction. See id. at 6. If the government had properly

established Perkins’s prior felony drug conviction, pursuant to

, the mandatory minimum sentence on Count I would

have increased from 60 months to 120 months. See

(b)(1)(B). This would have increased Perkins’s total

mandatory minimum sentence to 180 months. Thus, Perkins agreed

to an above-guideline sentence of 147 months to prevent the

government from filing a § 851 enhancement. The court granted

the parties’ joint motion for an upward variance and sentenced

Perkins to 147 months, in accordance with the plea agreement.

On June 27, 2016, Perkins filed a § 2255 petition setting

forth three grounds for relief. Doc. no. 1. Perkins later

moved for leave to add a fourth ground to his petition (doc. no.

7), which the court granted. The court subsequently dismissed

two of the claims. Doc. no. 10. Perkins’s remaining claims

are: (1) ineffective assistance based on counsel’s failure to

correctly advise Perkins of his guideline sentencing range

during plea negotiations, and (2) ineffective assistance based

on counsel’s failure to inform Perkins of the elements of

constructive possession of a firearm. Perkins also requests

that the court appoint counsel to assist him in obtaining relief

under § 2255. Doc. no. 7. On November 22, 2016, the court

ordered the United States Attorney to file an answer to

5 Perkins’s two remaining claims. Doc. no. 10. On December 20,

2016, the government filed its response. Doc. no. 11.4

Discussion

Perkins’s remaining grounds for relief both raise

ineffective-assistance-of-counsel claims. When a § 2255

petition is based on ineffective assistance of counsel, the

petitioner “must demonstrate both: (1) that ‘counsel’s

performance was deficient,’ meaning that ‘counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment’; and (2) ‘that

the deficient performance prejudiced the defense.’” United

States v. Valerio,

(1st Cir. 2012) (quoting

Strickland v. Washington,

(1984)); see also

Hill v. Lockhart,

(1985) (“[T]he two-part

4 Perkins objects to the government’s supplemental response, arguing that the government (1) waived any objection to the first ineffective-assistance claim by failing to object in its initial response (doc. no. 6), and (2) filed its response after the December 9, 2016 deadline set by the court, without requesting an extension. See doc. nos. 12 & 13. First, the court finds no waiver based on the government’s failure to address Perkins’s claim in its initial response. Second, Perkins has not alleged that he suffered prejudice as a result of the late filing. The court considers the government’s supplemental response in the interest of justice. Cf. LR 1.3(b) (“The court may excuse a failure to comply with any local rule whenever justice so requires.”).

6 Strickland v. Washington test applies to challenges to guilty

pleas based on ineffective assistance of counsel.”).

Under the deficiency prong, the petitioner “must show that

counsel’s representation fell below an objective standard of

reasonableness.” Strickland,

. There is a

“strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance,” and the petitioner

“must overcome the presumption that, under the circumstances,

the challenged action might be considered sound trial strategy.”

(internal quotation marks omitted). Under the

prejudice prong, the petitioner “must show that there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

. Failure to satisfy either the deficiency or

prejudice prong defeats an ineffective-assistance-of-counsel

claim.

.

I. Incorrectly Estimating the Guideline Sentencing Range

Perkins claims that his trial counsel was ineffective for

incorrectly estimating his guideline sentencing range and

advising him to accept a plea agreement that was above the

guideline range. According to Perkins, his trial counsel

mistakenly informed him that his total offense level for Count

II, after a three-level decrease for acceptance of

7 responsibility, was 25, giving him a guideline sentencing range

of 70-87 months. Perkins alleges that trial counsel advised him

to sign a binding plea agreement for the high end of that range—

87 months—plus 60 months consecutive on Count III, for a total

sentence of 147 months imprisonment.

In support of his claim, Perkins points to his initial PSR,

which calculated his guideline range for grouped Counts I and II

as 70-87 months. Cr. doc. no. 57 at 24. Probation subsequently

revised the PSR and recalculated the guideline sentence for the

grouped counts as 60 months. Cr. doc. no. 62 at 24. Perkins

asserts that he only agreed to serve 87 months on those counts

because counsel incorrectly estimated his guideline range.

Perkins states that he would never have entered a plea agreement

for a sentence above the guideline range.

Perkins’s claim fails for two reasons. First, when trial

counsel negotiated the plea agreement, Perkins’s guideline range

had not been calculated, as the PSR was drafted after Perkins

pled guilty. In fact, Perkins’s plea agreement included the

following language:

The defendant is aware that any estimate of the probable sentence or the probable sentencing range relating to the defendant pursuant to the advisory Sentencing Guidelines that the defendant may have received from any source is only a prediction and not a promise, and is not binding on the United States, the Probation Office, or the Court, except as expressly provided in this Plea Agreement.

8 Cr. doc. no. 47 at 9. Thus, Perkins was aware that trial

counsel’s sentencing-range estimate was only a non-binding

prediction. Courts have made clear that inaccurately predicting

a defendant’s guideline range cannot serve as the basis for an

ineffective-assistance-of-counsel claim. See Santana-Zapata v.

United States, No. 15-cv-016-LM,

, at *4 (D.N.H.

Oct. 28, 2015) (“It is well-established in the First Circuit

that an inaccurate prediction about sentencing will generally

not alone be sufficient to sustain a claim of ineffective

assistance of counsel.” (internal quotation marks and citations

omitted)); Knight v. United States,

(1st Cir.

1994); see also United States v. Martinez,

(7th Cir. 1999) (“[A]n attorney’s mere inaccurate prediction of

a sentence does not demonstrate the deficiency component of an

ineffective assistance of counsel claim.” (internal quotation

marks omitted)); United States v. Gordon,

(10th Cir. 1993) (“A miscalculation or erroneous sentence

estimation by defense counsel is not a constitutionally

deficient performance rising to the level of ineffective

assistance of counsel.”); United States v. Turner,

(9th Cir. 1989) (inaccurate prediction of guideline range

does not constitute ineffective assistance); United States v.

Sweeney,

(2d Cir. 1989) (same); United States v.

9 Brent, No. 3:05-CR-0120-P(1),

, at *3 n.3 (N.D.

Tex. July 5, 2011) (“Courts have long recognized that estimating

a guideline range is not an exact science and that defense

counsel is not deficient for making a prediction that turns out

to be different from the sentence recommended by Probation.”).

Therefore, accepting as true Perkins’s allegation that trial

counsel incorrectly estimated his guideline range as 70-87

months, such an inaccurate prediction does not constitute

deficient performance.

Moreover, the record shows that counsel acted strategically

in negotiating the plea agreement. Trial counsel explained to

the court at the sentencing hearing, with Perkins present, that

the 87-month sentence for the grouped counts was a negotiated

compromise between the 60-month mandatory minimum sentence

Perkins then faced on Count I, and the heightened mandatory

minimum sentence that would have applied if the government

established Perkins’s prior felony drug offense under

. Perkins’s trial counsel negotiated the plea agreement to

preclude the government from filing a § 851 enhancement, which

would have resulted in a 120-month mandatory minimum sentence on

Count I. The parties agreed that 87 months on the grouped

counts was appropriate. Although the stipulated sentence on the

grouped counts was 27 months greater than Perkins’s guideline

10 range, trial counsel’s strategic decision to advise Perkins to

accept the agreement was a reasonable exercise of his

professional judgment. See Strickland,

;

Knight v. Spencer,

(1st Cir. 2006) (“Under the

first prong of Strickland, there is a strong presumption that

counsel’s strategy and tactics fall within the range of

reasonable professional assistance, and courts should avoid

second-guessing counsel’s performance with the use of

hindsight.” (internal quotation marks omitted)).

For these reasons, Perkins’s allegations, taken as true, do

not satisfy the first prong of the ineffective-assistance test.

Accordingly, Perkins is not entitled to relief on this

ineffective-assistance claim.

II. Failure to Inform Perkins of Constructive-Possession Elements

In his final claim, Perkins asserts that trial counsel was

ineffective for failing to inform him that constructive

possession of a firearm requires both the power and intent to

exercise control over the firearm. Construing his claim

liberally, Perkins suggests that counsel never explained to him

what the government would need to prove at trial to establish

that he had constructive possession of the four firearms in this

case. The court accepts Perkins’s allegation as true for

purposes of this motion.

11 Counts II and III charged Perkins with possession of a

firearm in violation of

(g)(1) and §

924(c)(1)(A), respectively. To satisfy the possession

requirements of § 922(g)(1) and § 924(c)(1), the government may

prove either actual or constructive possession of the firearm.

See United States v. Guzmán-Montañez,

(1st Cir.

2014); United States v. Rodriguez-Lozada,

(1st

Cir. 2009). “Actual possession is . . . immediate, hands-on

physical possession.” Guzmán-Montañez,

(citation

omitted). “Constructive possession can be established by

proving that the person has the power and intention of

exercising dominion and control over the firearm.”

(citation omitted); see also Henderson v. United States, ---

U.S. ---,

(2015).

Constructive possession may be sole or joint and does not require actual ownership of the firearm. However, a person must have actual knowledge of the weapon in order to have constructive possession of it. Establishing a person’s culpable knowledge, like specific intent, often depends on circumstantial evidence alone. For constructive possession of a firearm in particular, the requisite knowledge and intention can be inferred from circumstances such as a defendant’s control over the area where the contraband is found (e.g., defendant’s home or automobile). Knowledge must be fairly inferrable from the circumstances, however, and mere presence with or proximity to weapons, or association with another who possesses a weapon, is not enough. The record must contain evidence of some action, some word, or some

12 conduct that links the individual to the firearm and indicates that he had some stake in it, some power over it.

United States v. Ridolfi,

(1st Cir. 2014)

(internal quotation marks, citations, and alteration omitted).

Perkins contends that trial counsel was ineffective for

failing to inform him of the elements of constructive possession

of a firearm. As discussed above, to show ineffective

assistance of counsel, a petitioner must demonstrate that

counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland,

. In the guilty plea context, to satisfy the prejudice

requirement the petitioner “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.”

Hill,

; see also Moreno-Espada v. United States,

(1st Cir. 2012) (petitioner failed to

demonstrate prejudice because he did not establish that but for

counsel’s conduct, he “would have foregone a guilty plea and run

the gauntlet of trial.”) “[S]elf-serving statements

unaccompanied by either a claim of innocence or the articulation

of any plausible defense that could have been raised had a

defendant opted for a trial, are insufficient to demonstrate the

13 required prejudice under Strickland.” Moreno-Espada,

(internal quotation marks and alterations omitted).

Here, the court need not address whether trial counsel’s

conduct was constitutionally deficient, because Perkins has

failed to show a reasonable probability that he would not have

pleaded guilty if counsel had informed him of the law of

constructive possession. In fact, Perkins does not even allege

that, if counsel had informed him of the elements of

constructive possession of a firearm, he would have pleaded not

guilty and insisted on going to trial. See Hill,

. Moreover, any constructive-possession argument or defense

likely would not have succeeded at trial. See

(“[W]here the alleged error of counsel is a failure to advise

the defendant of a potential affirmative defense to the crime

charged, the resolution of the ‘prejudice’ inquiry will depend

largely on whether the affirmative defense likely would have

succeeded at trial.”). Perkins acknowledged in a recorded

telephone call that all four firearms found during the search

were his, and Plunkett admitted that the two firearms found in

the safe belonged to Perkins. Thus, the record clearly links

Perkins to the firearms and indicates that he had actual

14 knowledge of them.5 Additionally, the evidence is sufficient for

a jury to infer that Perkins had the power and intent to

exercise control over the firearms. Therefore, any argument

that Perkins did not have constructive possession of the

firearms had no reasonable chance of success. As such, it is

implausible for the court to conclude that Perkins would have

insisted on going to trial based on a meritless legal argument.

For these reasons, Perkins’s claim fails to satisfy the

prejudice prong of the test for ineffective assistance of

counsel. Accordingly, Perkins is not entitled to relief on his

final ineffective-assistance claim.

III. Evidentiary Hearing

A petitioner who files a § 2255 motion “is not entitled to

an evidentiary hearing as a matter of right.” David,

(citing United States v. McGill,

(1st

Cir. 1993)). An evidentiary hearing is not warranted where (1)

the motion is facially inadequate; (2) the movant’s allegations,

even if true, do not entitle him to relief; or (3) the movant’s

allegations “state conclusions instead of facts, contradict the

record, or are inherently incredible.”

(internal quotation

marks omitted). “[T]he petitioner bears the burden of

5 In assessing the record, the court does not consider Perkins’s post-arrest statement that the government conceded it would not use at trial.

15 establishing the need for an evidentiary hearing.” DeCologero

v. United States,

(1st Cir. 2015) (quoting

McGill,

).

Perkins does not request an evidentiary hearing, and the

record and pleadings in this case enable the court to decide his

motion without a hearing. In deciding this motion, the court

has accepted Perkins’s allegations as true, to the extent not

contradicted by the record. As set forth above, Perkins’s

allegations and the record in this case show that he is not

entitled to relief on either remaining ineffective-assistance

claim. Thus, an evidentiary hearing is not warranted in this

case.

IV. Court-Appointed Counsel

Perkins requests that the court appoint counsel to assist

him in obtaining relief under § 2255. Although Perkins has no

constitutional right to counsel in § 2255 proceedings, the court

may appoint counsel to a financially eligible person seeking

relief under § 2255 if the interests of justice so require. See

18 U.S.C. § 3006A(a)(2)(B). The First Circuit has indicated

that appointment of counsel is warranted where (1) the

petitioner has shown a fair likelihood of success on his

constitutional claim, (2) the claim is factually complex and

legally intricate, and (3) the facts are largely undeveloped and

16 appellant is severely hampered in his ability to investigate

them. See United States v. Mala,

(1st Cir.

1993).

Those factors are not present here. First, Perkins’s

allegations show that he cannot succeed on either ineffective-

assistance claim. Second, his petition does not raise complex

factual issues. Finally, Perkins’s claims do not depend on

“largely undeveloped” facts,

, nor do they warrant an

evidentiary hearing. See Bucci v. United States,

(1st Cir. 2011) (“Although petitioners have no constitutional

right to counsel in § 2255 proceedings, Rule 8(c) of the Rules

Governing Section 2255 Proceedings requires the appointment of

counsel if an evidentiary hearing is required.” (internal

citation omitted)). Therefore, the interests of justice do not

warrant the appointment of counsel in this case.

Conclusion

For the foregoing reasons, Perkins’s petition for relief

under

(doc. no. 1) and request for court-

appointed counsel (doc. no. 7) are denied. Because Perkins has

not made a substantial showing of the denial of a constitutional

right, the court declines to issue a certificate of

appealability. See

(c)(2); Rule 11(a), Rules

17 Governing Section 2255 Proceedings. The clerk of court shall

enter judgment accordingly and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 14, 2017

cc: Roger Perkins, pro se Seth R. Aframe, Esq.

18