UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Peter J. Apicelli
v. Civil No. 18-cv-302-JD Opinion No. 2018 DNH 085 United States of America
O R D E R
Peter Apicelli, proceeding pro se, seeks relief pursuant to
28 U.S.C. § 2255 from his conviction and sentence for
manufacturing marijuana in violation of 21 U.S.C. § 841(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, 50 F.3d
1097, 1098 (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,
897 F.2d 1222, 1225 (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, 337 F.3d 74, 78-9 (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., 28 U.S.C. § 2284 (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, 965 F.2d 1184, 1186 (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 21 U.S.C.
§ 841(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, 839 F.3d 75 (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, 617 F.3d 27, 32 (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., 670 F.3d 109, 114-15 (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, 2015 WL 3515424, 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
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Peter J. Apicelli
v. Civil No. 18-cv-302-JD Opinion No. 2018 DNH 085 United States of America
O R D E R
Peter Apicelli, proceeding pro se, seeks relief pursuant to
28 U.S.C. § 2255 from his conviction and sentence for
manufacturing marijuana in violation of 21 U.S.C. § 841(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, 50 F.3d
1097, 1098 (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,
897 F.2d 1222, 1225 (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, 337 F.3d 74, 78-9 (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., 28 U.S.C. § 2284 (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, 965 F.2d 1184, 1186 (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 21 U.S.C.
§ 841(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, 839 F.3d 75 (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, 617 F.3d 27, 32 (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., 670 F.3d 109, 114-15 (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, 2015 WL 3515424, 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, 879 F.3d 7, 12 (1st Cir. 2018) (quoting
Strickland v. Washington, 466 U.S. 668, 688, 694, (1984)).
Failure to meet either prong required to show ineffective
assistance of counsel obviates the claim. Strickland, 466 U.S.
at 697.
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. 28 U.S.C. § 2253(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