March 19, 2024
Advocating for basic rights comes first. I have become a student of the system, and it makes me sick to my stomach. When the only tool the Federal Government has is a hammer, they will treat every problem
Like it is a nail. The most detestable form of humanity is the one who has knowledge and refuses to use it.
To quote Jabba the Hut (star wars) “ The Bounty Hunter is my kind of scum, Fearless, Inventive.”
To that effect, I humbly submitted the following to the court today and share it with you as I prepare to surrender to the Bureau of Prisons on April 5, 2024.
UNITED STATES DISTRICT COURT
District of Massachusetts
United States of America, )
)Plaintiff(s), )
)v. ) Criminal No. 1:21-cr-10162-DJC )
Dana L. McIntyre, )
) Petitioner. )
Pro-Se Petitioner’s Motion for Ineffective Assistance of Counsel Pursuant to U.S.C. § 2255
Comes now, Dana McIntyre, Pro-Se Petitioner. Petitioner is not a lawyer and does not have access to adequate legal resources. It’s the Petitioner’s understanding that the U.S. Supreme Court has instructed District Courts to construe pro-se motions liberally, since pro-se petitioners do not have access to the same resources as licensed attorneys. For example, in Haines v. Kerner 404 U.S. 519 (1972), the Court stated that allegations by a pro-se complainant, “however inartfully pleaded,” are sufficient to warrant an opportunity to offer supporting evidence and should not be dismissed merely due to technical deficiencies in the pleading.
The Petitioner implores this Honorable Court to construe his motion on the merits, rather than on the technical presentation. Petitioner moves this Honorable Court to grant a new sentencing hearing whereby effective counsel be appointed to present facts never mentioned in defendants previous sentencing hearing and which significantly impact the outcome for alternative incarceration including home confinement under Section 404 of the First Step Act.
A District Court “may modify an imposed term of imprisonment to the extent . . . expressly permitted by statute.” 18 U.S.C. § 3582(c). One such authorizing statute is Section 404 of the First Step Act, under which a “court that imposed a sentence for a covered offense may . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” First Step Act of 2018, Pub. L. No. 115-391 § 404, 132 Stat. 5194. United States v. Foster (D. Md. 2023). The U.S. Sentencing Commission amended the Sentencing Guidelines and expanded the scope of the first step act to include alternatives to incarceration for people suffering from significant medical issues. This modification comes after significant research determined that the Bureau of Prisons is unable to provide adequate medical care for those individuals suffering from significant health care issues. Mr. McIntyre suffers from significant medical issues which require surgery and rehabilitation and physical therapy. These medical issues can’t be managed by the Bureau of Prisons and Mr. McIntyre should have been able to present this evidence at his sentencing hearing. His counsel at the time was aware of the significance of his medical issues and presented no evidence of these serious health issues at his sentencing hearing.
Introduction:
Petitioner McIntyre does not have a prior criminal history. He has worked as a law-abiding, contributing citizen prior to the instant offense and will continue working to reconcile as a productive member of society upon release. Mr. McIntyre suffers from and has a history of medical issues that include Pulmonary collapse(exhibit 1A and exhibit 1B ), Dyspnea (exhibit 2A) disorders of the diaphragm, paralysis of the diaphragm (exhibit 2B and 2C) asthma, hyperlipidemia (exhibit 3A), gastroesophageal reflux disease, prediabetes, spinal stenosis (exhibit 3B) Degenerative arthritis (exhibit 3C) Progressively deteriorating spinal stenosis, lumbar region without neurogenic claudication and lumbar spine degenerative changes most pronounced at L-4 and L5 and described in the attached MRI report dated 11/16/2023 (exhibits 4A and 4B) Moderate degenerative arthritis of the AC joint in the right shoulder (exhibit 5). Movant has a paralyzed diaphragm, asthma (exhibit 6A) and suffers from recurrent atelectasis (a full or partial collapsed lung.) (exhibit 6B and 6C) The Movant is currently being treated at Dartmouth-Hitchcock Medical Center Pain Management clinic for debilitating chronic pain related to degenerative arthritis of the spine and is scheduled to receive a series of Medial Branch Block injections on March 21, 2024 and May 22, 2024 while continuing physical therapy. (exhibit 7A & 7B) MRI results from 2016 (exhibit 8A – 8D) compared to MRI results from 2023 (exhibits 4A and 4B) confirm rapid progressing deterioration of the spine with disk bulge and facet arthropathy at L2-L3 and significant and ongoing degenerative changes at L3-L4, L4-L5 and L5-S1 in the seven years between MRI’s.
Facts:
Petitioner entered into a plea agreement on August 30, 2024, Petitioner had minimal contact with counsel for the weeks between entering a plea and the date of sentencing. Petitioner at all times informed counsel of his serious medical issues and that in accordance with the newly amended first step act provisions he may be considered for alternative incarceration because of these serious medical issues and the need for significant care. At the sentencing hearing counsel was still recovering from his own medical issues and surgery and admitted in an email to the petitioner that he had been incapacitated for several weeks leading up to the sentencing hearing including still experiencing periodic episodes of “Foggy Brain”. In a June 20, 2023, email apologizing for council not meeting the deadline to respond to probations presentence report, council shares details of his medical issues as well as councils “major backlog of trials, court appearances and client interfaces that occurred while I was essentially incapacitated during the 5 weeks leading up to my surgery.” (exhibit 9)
This is also the same 5-week period leading up to Movants scheduled trial date of May 1, 2024, that was averted due to a plea agreement in April.
As a point of reference to counsels’ character and mindset, Movant has included a draft of a petition to the Massachusetts Bar Association detailing the extortion of fees for a trial that never happened that was demanded by counsel in the cafeteria of the Federal Court prior to Movant entering the court room to affirm my guilty plea. (exhibit 10)
Due to counsel’s incapacitated state he failed to present critical evidence on behalf of the petitioner at sentencing and failed to argue for an alternative to incarceration which would include home confinement under the first step act.
Under the new U.S. Sentencing Guidelines, and the Retroactive Amendment, Petitioner urges this Honorable Court to grant a new sentencing hearing where Petitioner’s evidence can be properly heard and his argument for home confinement be considered.
The Petitioner respectfully asks this Honorable Court to grant this motion and consider that if he had effective counsel of sound mind and good health his medical evidence would have been presented and an alternative argument would have been made with regards to his sentence.
Argument:
A. The Court should grant the Petitioner’s motion for a new sentencing hearing based on ineffective counsel.
To establish a claim of ineffective assistance of counsel, Petitioner must demonstrate: (1) that his attorney’s performance was deficient and outside the range of reasonable professional assistance, and (2) that he was prejudiced by his counsel’s deficient performance to the extent that there is a reasonable probability that but for counsel’s error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 689, 694 (1984); United States v. Taylor, 258 F.3d 815, 818 (8thCir. 2001). “Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689.
To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel’s performance was deficient and then that counsel’s deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel’s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006).
In this case while council was present at the sentencing hearing he failed to introduce critical evidence with regard to the Defendant Dana McIntyre’s serious health issues and his need for multiple surgeries. This information had it been presented would support an argument for alternative sentencing in the form of home confinement.
The Court in United States v. Lopez-Pastrana, 889 F.3d 13 (1st Cir. 2018) found a sentence variance was proper when considering the Defendant’s serious medical issues. In the aforementioned case the defendant was sentenced to 12 months of home confinement instead of the original plea agreement term of 6 months in a Federal Prison. The Court in hearing the severity of the Defendant’s health issues sentenced him below the guidelines and below the low end of the plea agreement opting to allow him to serve a longer term at home on home confinement where he could be medically monitored and receive necessary medical care. In this case Mr. McIntyre’s counsel should have presented his serious medical conditions so the court could have considered the appropriateness of home confinement given his low recidivism risk and his zero-point criminal history status.
Mr. McIntyre’s counsel admitted to his incapacitation. This admission is the cause of his ineffective presentation of evidence and complete failure to present Mr. McIntyre’s mitigating medical history and current serious medical issues. The Court in Lopez-Pastrana held that the Defendant’s serious medical issues justified a sentence of home confinement. There is the probability the court in Mr. McIntyre’s case would have also sentenced Mr. McIntyre in a similar manner to home confinement where he could receive the medical care and monitoring he requires. Thus, Mr. McIntyre satisfies the two-prong analysis of his motion for ineffective counsel and he asks this honorable court to grant a new sentencing hearing.
Section 1 B1.10 of the Guidelines policy statement implements 18 U.S.C. §3582(c)(2). Subsection (c) of that policy statement lists amendments that are covered by the policy statement, and one of the amendments listed U.S. SENT’G COMM’N, Guidelines Manual Ch.4, Pt. A (Criminal History) (2021). Mr. McIntyre has no prior criminal history.
Petitioner McIntyre was sentenced on August 30, 2023, and is scheduled to surrender to federal prison on April 5, 2024. Since the time this Honorable Court imposed sentence, Petitioner has been working diligently to make amends. He took notice of this Court’s statement during sentencing about the need to accept responsibility and show remorse. For that reason,
Petitioner worked hard to create an extensive Release Plan, which Petitioner attached to this motion.
The Fair Sentencing Act requires equal application of the law. Where there is a change in alternative sentencing considerations that is retroactive, as is the case with the Petitioner, the Court should consider Petitioner’s motion for a new sentencing hearing or in the alternative consider Petitioner has demonstrated good cause for an alternative sentence of home confinement.
This Honorable Court recognizes that under § 3553(a), the sentence should be “sufficient, but not greater than necessary” to accomplish the goals of sentencing.
The First Step Act allows District Courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence. Federal Courts historically have exercised broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. District Courts’ discretion is bound only when Congress or the Constitution expressly limits the type of information a District Court may consider in modifying a sentence.
There is a “long” and “durable” tradition that sentencing judges “enjo[y] discretion in the sort of information they may consider” at an initial sentencing proceeding. Dean v. United States, 581 U. S. 62, 66. That unbroken tradition also characterizes federal sentencing history. Indeed, “[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United States, 518 U. S. 81, characterizes sentencing modification hearings.
The Court in Pepper v. United States, 562 U. S. 476, found it “clear that when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a District Court may consider evidence of a defendant’s rehabilitation since his prior sentencing.” Id., at 490.
Accordingly, when Courts bring people back for resentencing, they should consider evidence of rehabilitation, or evidence of rule breaking in prison, developed after the initial sentencing.
Conclusion
Keeping with the fair application law and in order to keep the balance of justice where Petitioner was entitled to effective representation and that the admission of his counsel being incapacitated for several weeks prior to his sentencing and experiencing “foggy brain” leading up to his sentencing that he neglected to present any mitigating evidence of movants serious health issues, requires that a new sentencing hearing be set or in the alternative this court amend the current sentence to a term of home confinement whereby, Petitioner can obtain the necessary medical care to treat his serious health issues. Petitioner prays for this relief.
I accept full responsibility for my crime and continue every day to show my family, friends, and my community the person I am outside of the bad decision I made. Approximately 85% of the total loss amount has been received by the Government with an action to retire the balance outlined in my release plan. Movant has included an updated medical evaluation from the most recent physician visit on March 5, 2024. (exhibit 11)
I understand, accept, and respect the sentence imposed and do not ask the Honorable Court for a reduction in the sentence length. I am asking for humane compassion.
Upon completion of my sentence, I will continue to live a decent and respectable life that is worthy of imitation.
Respectfully, Submitted,
Dana L. McIntyre
