United States v. Corey Donovan

2013 DNH 160

• Court: District Court, D. New Hampshire
• Decided: November 25, 2013
• Docket: 07-CR-130-SM
• Status: Published

Opinion

United States v . Corey Donovan 07-CR-130-SM 11/25/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case N o . 07-cr-130-01-SM Opinion N o . 2013 DNH 160 Corey Donovan

O R D E R

Defendant’s latest challenge to his underlying sentence is

in the form of a motion filed in his closed criminal case, styled

as a “Motion for a Review of Sentence and Motion to Amend

Presentence Investigation Report.” United States v . Donovan, N o .

07-cr-130-01-SM (document n o . 1 0 5 ) . As he seeks relief from his

criminal sentence, the motion is properly construed as one for

relief under the provisions of 28 U.S.C. § 2255. Trenkler v .

United States, 536 F. 3d 8 5 , 97 (1st Cir. 2008). As such, it is

also a successive petition filed without prior authorization from

the court of appeals, and it is untimely.

Although the motion must be denied for those reasons,

perhaps a brief analysis of defendant’s claims on the merits may

prove helpful to his understanding of why those claims, even had

they had been properly and timely raised, would not entitle him

to any relief. Essentially, defendant claims that a state court “vacated”

one of his prior convictions, which conviction served to enhance

his federal sentencing guideline range, and that he has timely

sought relief within one year of that new development. However,

it is clear from the state court records that defendant’s prior

conviction was not vacated at all, and the motion is without

substantive merit, as well as being unauthorized and untimely.

On July 3 , 2001, defendant was sentenced in State v .

Donovan, N o . 01-S-071, to two to four years in the New Hampshire

State Prison, all suspended, and consecutive to a two to four

year stand committed sentence in a related case, State v .

Donovan, N o . 01-S-070. On June 2 1 , 2006, a superior court judge

(Houran, J . ) , brought forward the suspended sentence on motion of

prosecutors, and sentenced the defendant to two to four years,

all deferred for six months.

On August 2 5 , 2006, a different judge (Hollman, J.) granted

a prosecutorial motion to impose the deferred sentence, and he

sentenced defendant to two to four years, all suspended,

conditioned on defendant serving 12 months in the House of

Corrections. Judge Hollman added two years of probation to

defendant’s sentence as well, effective upon his release from the

House of Corrections.

2 On September 2 5 , 2007, yet another state judge (Fitzgerald,

J.) found that defendant had violated the terms of the probation

imposed by Judge Hollman, and sentenced him to two and a half to

six years, stand committed, with 206 days of pretrial confinement

credit.

Subsequently, yet another state judge (McGuire, J.) found,

on motion by defendant to vacate his sentence, that the September

2 5 , 2007, sentence imposed for the probation violation was not

statutorily authorized. Defendant’s original sentence for the

offense of conviction was two to four years, all suspended. (He

was not placed on probation or otherwise notified that he could

later be sentenced up to the maximum term authorized.)

Accordingly, the court held that the earlier imposition of a

probationary term was not authorized, and, accordingly, the

sentence imposed for violating the unauthorized probationary term

necessarily had to be vacated. See Order, dated April 1 4 , 2009

(McGuire, J . ) , State v . Donovan, N o . 01-S-071 (Attachment 2 to

Defendants’ motion (document n o . 1 0 5 ) .

However, neither the original sentence nor the original

conviction was vacated - they both remain valid. S o , it also

remains true that on February 2 3 , 2007, when defendant committed

his underlying federal crime of conviction, he was indeed under a

3 suspended state sentence in Docket N o . 01-S-071, and his

conviction was properly taken into account in calculating his

federal guideline sentencing range. His motion is without

factual or substantive merit.

And, the “vacation” that he refers to - the order dated

April 1 4 , 2009, in Docket N o . 01-S-071, was entered more than a

year before he filed his (first) motion for Section 22551 relief

(May 2 5 , 2010), rendering the motion untimely in any event under

28 U.S.C. § 2255(f)(4). Defendant mistakenly thinks the court of

appeals held that he had until June 1 9 , 2009, to seek habeas

relief, on grounds that the facts giving rise to his claims (the

alleged “vacation” of his state conviction) could not have been

discovered until then through the exercise of due diligence.

Actually, the court of appeals noted that he had one year from

March 2 5 , 2009, to file, and, at the latest, the date on which

the facts supporting his claim or claims presented could have

been discovered through the exercise of due diligence was June

1 9 , 2009, when defendant first sent a letter to this court

mentioning the supposedly vacated conviction. See Judgment dated

February 2 4 , 2011, Donovan v . United States, N o . 10-2180, United

States Court of Appeals for the First Circuit. In fact,

1 See Document N o . 97 in this closed criminal case, and Donovan v . United States, N o . 10-cv-390-SM.

4 defendant, through the exercise of due diligence could of course

have discovered the alleged vacation of his state conviction

within days of the state court’s April 1 4 , 2009, order, and

certainly well before May 2 5 , 2009, s o , his first petition was

untimely - but at this point that issue is a matter that must be

revisited, if at all, by the court of appeals. Timeliness is not

a critical issue, however, given the fundamental mistake of fact

underlying defendant’s claim - his state conviction and sentence

was not vacated by the state court, and it was properly

considered in determining his federal guideline sentencing range.

Conclusion

The Motion for a Review of Sentence and Motion to Amend

Presentence Investigation Report (document n o . 105) is DENIED.

Defendant’s Motion for Clarification and Reconsideration

(document n o . 104) is also DENIED.

SO ORDERED.

____________ Steven J. McAuliffe /United States District Judge

November 25, 2013

cc: Terry L. Ollila, AUSA Liam D. Scully, Esq. Corey Donovan, pro se