UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Peter J. Apicelli

v. Civil No. 18-cv-302-JD Opinion No.

United States of America

O R D E R

Peter Apicelli, proceeding pro se, seeks relief pursuant to

from his conviction and sentence for

manufacturing marijuana in violation of

(a)(1).1

In support, he challenges the prosecution of the charge against

him in federal rather than state court and argues that the court

was required to abstain from hearing the case. He also argues

that his trial counsel was ineffective for failing to raise

abstention.

Standard of Review

A prisoner in federal custody may move in the court that

imposed the sentence “to vacate, set aside or correct the

1 Apicelli states that he is proceeding “sui juris” without any explanation of the effect of that alleged status. sentence.”2 § 2255(a). “The clerk must promptly forward the

motion to the judge who conducted the trial and imposed

sentence.”3 Rule 4(a), Rules Governing Section 2255 Proceedings.

The judge must then examine the motion, and “[i]f it plainly

appears from the motion, any attached exhibits, and the record

of prior proceedings that the moving party is not entitled to

relief, the judge must dismiss the motion and direct the clerk

to notify the moving party.” Rule 4(b).

“Summary dismissal of a § 2255 [motion] is appropriate if

it plainly appears from the face of the motion that the movant

is not entitled to relief.” Carey v. United States,

(1st Cir. 1995). That is, a § 2255 motion must be

summarily dismissed if the “allegations, accepted as true, would

not entitle the [moving party] to relief.” Dziurgot v. Luther,

(1st Cir. 1990). Further, a section 2255

motion “is subject to dismissal, without an evidentiary hearing,

2 Based on his sentence and Apicelli’s reporting date, it appears that he is no longer incarcerated on his federal sentence but remains on supervised release. See Jackson v. Coalter,

(1st Cir. 2003) (holding that supervised release is sufficient to satisfy the “in custody” requirement of § 2255).

3 Although Apicelli states that he is requesting a “three judge panel” to consider his habeas motion, he provides no support for that request. See § 2255(a) (requiring motion to be filed with the sentencing judge); cf., e.g.,

(addressing three-judge district court).

2 if the grounds for relief either are not cognizable under

section 2255 or amount to mere bald assertions without

sufficiently particular and supportive allegations of fact.”

Barrett v. United States,

(1st Cir. 1992).

Discussion

In this case, Apicelli raises no claim that provides

grounds for relief under § 2255. His claims are procedurally

defaulted and meritless on their face.

A. Abstention

Apicelli was initially investigated by local and state

authorities for growing marijuana, and Apicelli was charged in

state court. The United States Attorney took over the case when

the state prosecutor realized that a conflict of interest

existed in state court. Apicelli then was charged in federal

court with manufacturing marijuana in violation of

(a)(1). Apicelli was found guilty and was sentenced to one

year and one day in prison, to be followed by two years of

supervised release.

Apicelli argues that this court should have abstained from

hearing the federal charge against him. Apicelli did not raise

that claim in this court or on appeal. United States v.

Apicelli,

(1st Cir. 2016). Therefore, the claim was

3 procedurally defaulted, and he has not shown cause for that

omission, resulting prejudice, or actual innocence.4 Sotinon v.

United States,

(1st Cir. 2010).

In addition, Apicelli is wrong on the merits of the claim.

None of the abstention doctrines he cites applies in the

circumstances of this case. See Nazario-Lugo v. Caribevision

Holdings, Inc.,

(1st Cir. 2012) (discussing

abstention doctrines and citing cases).

B. Fifth and Fourteenth Amendments

Apicelli argues that his sentence must be vacated because,

he contends, he was denied a hearing on the issue of a conflict

of interest in state court and he should have been prosecuted in

state court instead of federal court. He contends that the lack

of a hearing and prosecution in federal court violated his Fifth

and Fourteenth Amendment rights to due process and equal

protection. Because Apicelli did not raise that claim here or

on appeal, it is procedurally defaulted and he has not shown

cause, prejudice, or actual innocence.5

4 To the extent Apicelli intended to argue ineffective assistance of counsel as cause for the default, that claim also fails as is explained below.

5 Counsel argued on Apicelli’s behalf in the context of a motion for reconsideration that the federal case was the result of selective prosecution. The court rejected that theory on the merits and because it was improperly first raised in a motion

4 In addition, as Apicelli acknowledges, a hearing was held

on March 26, 2015, where the Assistant United States Attorney

explained the conflict of interest issue to the satisfaction of

the court and Apicelli’s counsel. United States v. Apicelli,

14-cr-12-JD, doc. no. 32, at *4 (D.N.H. Mar. 31, 2015).

Further, Apicelli has not shown that any due process or equal

protection rights exist that a defendant in his situation must

be prosecuted in state court rather than federal court.

Apicelli also argues that his Fifth and Fourteenth

Amendment rights were violated when the state charge was

terminated by nolle prosequi, which he says was “an abrupt and

arbitrary decision by an [sic] town police officer engaging in

the unauthorized practice of law.” Once again, this claim is

procedurally defaulted because it was not raised in this court

or on appeal, and Apicelli has not shown cause, prejudice, or

actual innocence. The claim also lacks any merit.

C. Ineffective Assistance of Counsel

“To prevail on an ineffective assistance of counsel claim,

[Apicelli] must show both that his ‘counsel's representation

fell below an objective standard of reasonableness’ (the

for reconsideration. United States v. Apicelli, 14-cr-12-JD,

, at *4 (D.N.H. June 4, 2015). Apicelli did not raise the issue on appeal.

5 performance prong), and that ‘there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different’ (the prejudice prong).”

Rivera v. Thompson,

(1st Cir. 2018) (quoting

Strickland v. Washington,

, (1984)).

Failure to meet either prong required to show ineffective

assistance of counsel obviates the claim. Strickland,

.

Apicelli contends that his counsel provided ineffective

assistance because he failed to pursue abstention to move the

prosecution to state court, which omission, he asserts, led to

violations of his Fifth and Fourteenth Amendment rights to due

process and equal protection. He argues that his counsel’s

admitted lack of familiarity with abstention shows ineffective

assistance. He states that the outcome would have been

different had he been tried in state court.

Because abstention did not apply in Apicelli’s federal

criminal case, he cannot show that his counsel was ineffective

in failing to raise a meritless issue. In addition, the

prejudice prong requires a showing that the outcome in the

federal case would have been different. Apicelli misunderstands

the requirements, and in any case, cannot show ineffective

assistance or prejudice.

6 Conclusion

For the foregoing reasons, Apicelli’s motion for § 2255

relief is dismissed pursuant to initial review as required under

Rule 4 of the Rules Governing Habeas Corpus Cases.

Because Apicelli has not made a substantial showing of the

denial of a constitutional right, his request for a certificate

of appealability is denied.

(c)(2).

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

April 23, 2018

cc: Peter Apicelli, pro se

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