United States District Court, D. Massachusetts
For USA, Plaintiff: Kenneth G. Shine, United States Attorney's Office MA, Boston, MA; Michael J. Crowley, U.S. Attorney's Office - MA, Boston, MA
MEMORANDUM AND ORDER
Patti B. Saris, Chief United States District Judge.
Pro se petitioner, Reginald Mouscardy, brings this writ of habeas corpus pursuant to 28 U.S.C. § 2255, alleging primarily that he does not qualify for enhanced sentencing under the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e)(1), because his prior assault convictions were not violent felonies. He separately contends that those and other prior convictions were insufficient to support enhancement because he received concurrent sentences for each. Petitioner's request for relief (Docket No. 89) is DENIED.
The Court assumes familiarity with its previous Memorandum and Order in this case regarding the petitioner's motion to suppress evidence, see United States v. Mouscardy, No. 10-cr-10100, 2011 WL 2600550 (D. Mass. June 28, 2011), aff'd,
United States v. Mouscardy, 722 F.3d 68, 70 (1st Cir. 2013), summarizing only those facts relevant to the petitioner's pending motion.
On July 26, 2011, a jury convicted Mouscardy of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). This Court then sentenced him to twenty years in prison as an armed career criminal. Mouscardy appealed, alleging, among other things, that the ACCA sentencing enhancement violated his Sixth Amendment rights because the predicate offenses on which this Court had relied were not categorically violent felonies. Id. at 70. The First Circuit affirmed. Id. at 78. Mouscardy now asks that the guilty verdict and his sentence be vacated, claiming specifically that the Massachusetts crime of assault and battery with a dangerous weapon does not constitute a " violent felony" under 18 U.S.C. § 924(e)(2)(B), and that several of his convictions should not have served as ACCA predicates because they were given concurrent sentences. The First Circuit squarely resolved the former issue on appeal, and Mouscardy did not there raise the latter. Mouscardy's petition is therefore DENIED without hearing.
A. Standard of Review
A prisoner may seek postconviction relief from his sentence if that sentence was imposed (1) in violation of the Constitution or laws of the United States or (2) by a court that lacked jurisdiction, or if that sentence (3) exceeded the statutory maximum or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; see Damon v. United States, 731 F.3d 1, 4 (1st Cir. 2013). " Section 2255 is not a surrogate for a direct appeal," and a petitioner bears the ...