United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
WILLIAM G. YOUNG DISTRICT JUDGE
September 13, 2016, the Court heard arguments by petitioners
Charlie Webb ("Webb") and Timothy Meadows
("Meadows") (collectively, the
"Defendants") and the government related to the
Defendants' motions to correct sentence pursuant to 28
U.S.C. § 2255. Electronic Clerk's Notes, ECF No.
119, Meadows; Electronic Clerk's Notes, ECF No.
114, Webb. These by now familiar motions come on the
heels of the Supreme Court's decisions in
Johnson v. United States, 135
S.Ct. 2551 (2015) (Johnson II) and Welch v.
United States, 136 S.Ct. 1257 (2016), which have
generated a flurry of activity from inmates sentenced under
the Armed Career Criminal Act, 18 U.S.C. § 924(e)
("ACCA"), in particular under the now defunct ACCA
"residual clause." After taking the Defendants'
matters under advisement, this Court now denies Webb's
Section 2255 motion to correct his sentence and allows
Meadows's Section 2255 motion to correct his sentence.
Given the recurrence of the issues discussed, the Court takes
the opportunity to explain its reasoning in this memorandum.
Webb and Meadows's Sentencings and Further
December 20, 2001, a jury sitting in federal court in Boston
convicted Webb of one count of being a felon in possession of
a firearm, under 18 U.S.C. § 922(g)(1). Jury Verdict,
ECF No. 50, Webb; J., ECF No. 64, Webb.
Similarly, on April 6, 2007, another federal jury sitting in
Boston convicted Meadows of one count of being a felon in
possession of a firearm, under 18 U.S.C. § 922(g)(1).
Jury Verdict, ECF No. 42, Meadows.
individual convicted of being a felon in possession of a
firearm is subject to a prison term of no more than ten
years, 18 U.S.C. § 924(a)(2); however, if the individual
also has "three previous convictions . . . for
a violent felony or a serious drug offense, " he
qualifies as an armed career criminal under the ACCA, subject
to a minimum sentence of fifteen years in prison, 18 U.S.C.
§ 924(e)(1) (emphasis added). At the time the Defendants
committed their "felon in possession of a firearm"
misconduct, "violent felony" was defined as a
crimethat either "has as an element the
use, attempted use, or threatened use of physical force
against the person of another, " (also known as the
"force clause"), is one of the enumerated offenses
of "burglary, arson, or extortion, " or, in what
came to be known as the ACCA "residual clause, "
"involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another". 18 U.S.C. § 924(e)(2)(B).
the time came for sentencing, the United States Probation
Department classified both defendants as armed career
criminals under the ACCA. Webb PSR 7; Meadows PSR 5.
Webb's predicate convictions were: (1) a 1990 conviction
for possession with intent to distribute cocaine; (2) a 1990
conviction for possession with intent to distribute cocaine;
(3) a 1993 conviction for distribution of cocaine; and (4)
1996 Massachusetts convictions for assault and battery with a
dangerous weapon ("ABDW") and larceny from a
person. Webb PSR 7, 8-11. Meadows's predicate convictions
consisted of: (1) a 1985 conviction for burning a dwelling
house; (2) a 1985 Massachusetts conviction for ABDW; and (3)
a 1990 conviction for armed robbery while masked. Meadows PSR
5, 8-11. Concluding that the predicate offenses satisfied the
armed career criminal requirements of the ACCA, this Court
sentenced Webb to a prison term of 288 months on June 20,
2002, J., Webb, and Meadows to a prison term of 180
months on November 8, 2007. J., ECF No. 48-1,
Meadows; Tr. Sentencing Excerpt 3: 8-10, ECF No.
48-2, Meadows. On appeal, the First Circuit affirmed
both Defendants' convictions. United States
v. Webb, 70 Fed.App'x 2 (2003);
United States v. Meadows, 571 F.3d
131 (2009). The Supreme Court denied Webb's petition for
certiorari on December 1, 2003, Webb v.
United States, 540 U.S. 1065 (2003), and
Meadows's petition on November 9, 2009. Meadows
v. United States, 558 U.S. 1018 (2009).
Later, both Defendants filed first Section 2255 petitions,
which were denied by this Court. Mot. Vacate, ECF No. 74,
Webb; Electronic Endorsement Dismissing Pet. Vacate,
ECF No. 74, Webb; Mot. Vacate, ECF No. 66,
Meadows; Electronic Order, ECF No. 67,
Ensuing Legal Developments
after the Defendants' convictions became final, the
Supreme Court held in Johnson II that "imposing
an increased sentence under the residual clause of the [ACCA]
violate[d] the Constitution's guarantee of due
process." 135 S.Ct. at 2563. Soon after, the Supreme
Court confirmed in Welch that, as applied to the
ACCA, Johnson II announced a "new rule" of
constitutional law that was substantive and, thus,
retroactively applicable to cases on collateral review, under
the framework put forth in Teague v.
Lane, 489 U.S. 288 (1989). Welch, 136 S.Ct.
The Defendants' Current Section 2255 Petitions
Johnson II and Welch, the Defendants filed
second or successive Section 2255 petitions on June 14, 2016,
(Webb), and on June 19, 2016, (Meadows). Mot. Vacate, ECF
No. 93, Webb; Mot. Vacate, ECF No. 101,
Meadows. In these petitions, both Defendants argue
that, because the Supreme Court held the residual clause of
the ACCA unconstitutional, they no longer meet the threshold
number of convictions for armed career criminal designation.
Mot. Vacate 6, Webb; Mot. Vacate 2-3,
Meadows. Specifically, the Defendants argue that
some or all of their predicate offenses no longer qualify as
violent felonies under 18 U.S.C. § 924(e)(2)(B) because
they are not within the scope of the remaining clauses -- the
force clause and the enumerated offenses of burglary, arson,
and extortion. Mot. Vacate 6, Webb; Mot. Vacate 2-3,
Meadows. Were the Defendants to prevail based on
these arguments, they would be entitled to relief under
Section 2255 for serving sentences "imposed in violation
of the Constitution or laws of the United States." 28
U.S.C. § 2255 (a) .
particular argument is that neither Massachusetts ABDW nor
larceny from a person qualify as violent felonies after
Johnson II. Mot. Vacate 6, Webb. The government
concedes that larceny from a person is not a violent felony,
waiving this argument. Government's Resp. Def.'s Pet.
28 U.S.C. § 2255 ("Gov't Resp."), ECF No.
99, Webb. The government also does not dispute Webb's
contention that one of his predicate drug offenses has since
been vacated. Id. It follows that whether Webb is
below the threshold number of required violent felonies or
serious drug offenses for armed career criminal designation
lives or dies based on his Massachusetts ABDW argument.
Meadows, he argues that none of his three predicate
convictions qualify as violent felonies. Mot. Vacate 3, 5, 9,
Meadows. If Meadows could prove that any of his
three predicate convictions (Massachusetts arson, ABDW, or
armed robbery while masked) is not a violent felony, then he
would fall below the threshold number of violent felonies
required for his armed career criminal designation.
Court must first confront a procedural issue the government
raised in its briefs opposing the Defendants' Section
2255 petitions. The government argues, and the Defendants do
not dispute, that the Defendants procedurally defaulted by
not preserving their claims contesting the constitutionality
of the residual clause of the ACCA at trial and on direct
appeal. Gov't Resp. 4, Webb; Government's
Resp. Def's Pet. 28 U.S.C. § 2255 3 ("Gov't
Resp."), ECF No. 107, Meadows. A procedural
default prohibits relief under Section 2255 unless the
defendant can show that 1) he had both "cause for having
procedurally defaulted his claim" and that the alleged
error resulted in "actual prejudice, "
Bucci v. United States, 662 F.3d
18, 29 (1st Cir. 2011) (internal quotation marks omitted), or
2) that the challenged constitutional error "has
probably resulted in the conviction of one who is actually
innocent, " Bousley v. United
States, 523 U.S. 614, 630 (1998) (citation omitted).
Court proceeds to analyze whether the Defendants have met the
cause and prejudice prongs that would excuse them from
giving the term "precise content, " the Supreme
Court developed a "cause" limitation on habeas
relief guided by the "notion that, absent exceptional
circumstances, a defendant is bound by the tactical decisions
of competent counsel, " and by issues of comity.
Reed v. Ross, 468 U.S. 1, 13
(1984). In guiding the concept's application, the Supreme
Court indicated early on that "futility of presenting an
objection to the state courts cannot alone constitute cause
for a failure to object at trial." Engle
v. Isaac, 456 U.S. 107, 130 (1982)
("If a defendant perceives a constitutional claim and
believes it may find favor in the federal courts, he may not
bypass the state courts simply because he thinks they will be
unsympathetic to the claim.") In Engle, the
Supreme Court also concluded that where a Supreme Court
decision preceding the defendant's trial "laid the
basis for [the defendant's] constitutional claim, "
leading to litigation in "numerous" courts that
agreed with the claimants in the years before the
defendant's trial, the defendant could not show
"cause" to support habeas relief. Id. at
131-33. Two years later, in Reed, the Supreme Court
built on Engle, laying out some of the circumstances
under which the "cause" requirement may be
satisfied. The Supreme Court concluded that the concerns
animating the "cause" restrictions are not present
where the "procedural failure" is not attributable
to "an intentional decision by counsel made in pursuit
of his client's interests, " such as when
"there was no reasonable basis in existing law" for
the unraised claim. Reed, 468 U.S. at 14, 15. In
other words, the "novelty of a constitutional question,
" may supply the required cause. Id. at 15-16
(holding that otherwise, the Court might "disrupt
state-court proceedings by encouraging defense counsel to
include any and all remotely plausible constitutional claims
that could, some day, gain recognition").
confined its prescription for the relationship between
"novelty" and cause to the situation where the
Supreme Court "has articulated a constitutional
principle that had not been previously recognized but which
is held to have retroactive application." Id.
at 17. A defendant's attorney's failure to present a
certain claim would be "sufficiently excusable" to
provide cause where a decision of the Supreme Court either
1)"explicitly" overruled one of its precedents or
2)"overturn[ed] a longstanding and widespread practice
to which [the Supreme] Court has not spoken, but which a
near-unanimous body of lower court authority has expressly
approved." Id. (citations omitted).
current petitions, the Defendants argue that their cases fit
into one of these two categories, since their ACCA claims
arise as a result of Johnson II' s retroactive
application. First, Webb argues that his case fits within the
second category enumerated in Reed because, although
the Supreme Court had not yet spoken about the
constitutionality of the ACCA residual clause at the time his
conviction became final on December 1, 2003, the federal
courts' rejection of vagueness challenges and routine
imposition of sentences under the residual clause constituted
a "longstanding and widespread practice." Reply 4,
Webb. Meadows sees his case as even stronger -- a candidate
for both categories in Reed -- because the Supreme
Court had already decided James v.
United States, 550 U.S. 192 (2007), a case that was
later overruled by Johnson II, by the time Meadows
was sentenced on November 8, 2007. Johnson II, 135
S.Ct. at 2563 ("We hold that imposing an increased
sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution's guarantee of due
process. Our contrary holdings in James and
Sykes are overruled."); Reply 28,
Court agrees with both Defendants and joins recent decisions
in this circuit to reject the government's cause
arguments. See, e.g., Craig v.
United States, No. 1:01-CR-00003-GZS-3, 2016 WL
5874965, at *3 (D. Me. Oct. 7, 2016); United States v.
Aponte, No. 11-CR-30018-MAP, 2016 WL 5338505, at *1 (D.
Mass. Sept. 22, 2016) (Ponsor, J.) . Meadows's case is
textbook Reed, since Johnson II explicitly
disavowed James's conclusion that the residual
clause of the ACCA is not unconstitutionally vague, and
James predates Meadows's
sentencing. See James, 550 U.S. at 210 n.6;
Johnson II, 135 S.Ct. at 2563.
case comes from an earlier period, 2003, when the Supreme
Court had not yet spoken on the ACCA residual clause. Other
circuit courts and district courts had, however, in some form
or another, confronted the constitutionality of the ACCA
residual clause. See Gov't Resp. 5-6,
Webb (collecting cases such as United
States v. Presley, 52 F.3d 64 (4th
Cir. 1995), United States v.
Sorenson, 914 F.2d 173 (9th Cir. 1990), United
States v. Sanders, 705 F.Supp. 396
(N.D. 111. 1988)). Webb and the government trade arguments on
whether these and other enumerated cases substantively
addressed the constitutionality of the ACCA residual clause,
perfunctorily discussed it or actually debated only
tangential issues. Compare Gov't Resp. 5-6,
Webb with Reply, 4-6, Webb. Both parties, however,
agree that none of these cases ruled in favor of the
constitutional challenge to the ACCA residual clause.
See Gov't Resp. 5-6, Webb; Reply, 4-6,
Webb (citing United States v.
Child, 430 F.3d 970, 972 ("We agree with every
other circuit that has considered this argument and hold that
it has no merit.") This concession places Webb's
case squarely within the second category in Reed
because the rejection of the residual clause argument, and
the related reliance on the residual clause in sentencing,
amount to a "longstanding and widespread practice . . .
which a near-unanimous body of lower court authority ha[d]
expressly approved" and which Johnson II
overruled. Reed, 468 U.S. at 17.
government contends, however, that, given that other counsel
raised unsuccessful challenges to the constitutionality of
the ACCA residual clause prior to Webb's sentencing,
Webb's claim is not novel, but rather within the ambit of
Bousley, 523 U.S. 614. Gov't Resp. 6. Relying on
Bousley, the government wishes to create a
distinction between constitutional challenges that it deems
novel because no one has raised those issues before and
previously raised constitutional challenges that courts have
rejected. Gov't Resp. 7, Webb. At first glance,
Bousley and First Circuit case law -- Damon
v. United States, 732 F.3d 1 (1st Cir.
2013), applying Bousley -- appear to lend themselves
to such a construction. Bousley concluded that the
petitioner could not demonstrate cause because "at the
time of petitioner's plea, the Federal Reporters were
replete with cases involving challenges to [similar
claims.]" 523 U.S. at 622. Damon justified the
absence of cause on "both the evolving Supreme Court
case law and the number of comparable, albeit unsuccessful,
challenges raised by previous defendants."
Damon, 732 F.3d at 5.
the government's interpretation would cast
Bousley and its progeny into tension with
Reed, because Reed's second category
explicitly relied on the existence, and not the absence, of
"longstanding" adverse court precedent to establish
cause. Reed, 468 U.S. at 17. First Circuit case law
preceding Damon recognized the tension that this
interpretation generated, and rejected it. Simpson
v. Matesanz, 175 F.3d 200, 212 (1st Cir.
1999) ("[I]t seems an odd result that a default is not
excused where counsel failed to make an objection because the
law was squarely against him, but a failure to make an
objection may be excused where there was no controlling
precedent against the claim .... In the absence of better
guidance, we will assume arguendo that the familiar
Reed unavailability standard is still good law,
subject to Bousley's caveat that an argument is
not unavailable simply because it has been rejected by a
higher court in a different case.").
presuming that Damon signaled a different approach,
a closer inspection of Bousley and Damon
actually reveals no tension between their holdings and the
categories created by Reed. Bousley
reviewed and denied a post-conviction petition for relief
arising from a retroactive Supreme Court decision that
resolved a circuit split over the relevant constitutional
challenge. Bousley, 523 U.S. at 621 (concluding that
Bailey v. United States, 516 U.S.
137 (1995), which interpreted 18 U.S.C. § 924(c)(1),
applied retroactively); Bailey, 516 U.S. at 142
(listing circuit splits on the interpretation of Section
924(c)(1)). Damon refused the petitioner the
postconviction relief requested as the result of an earlier,
arguably retroactive, First Circuit decision, United
States v. Holloway, 630 F.3d 252 (1st
Cir. 2011). Damon, 732 F.3d at 4-5. In light of
Johnson v. United States, 559 U.S.
133 (2010) ("Johnson I"),
Holloway had abrogated the then-binding First
Circuit precedent, United States v.
Mangos, 134 F.3d 460 (1st Cir.1998), which had
concluded that Massachusetts assault and battery charged
using the language "did assault and beat, " was
categorically a crime of violence under the Sentencing
Guidelines, see Mangos, 134 F.3d at 464. See
Holloway, 630 F.3d at 254-55. Although Mangos
was the law in the First Circuit, the Seventh Circuit had
ruled in United States v. Jones,
235 F.3d 342 (7th Cir. 2000), that the same charging language
did not indicate whether Massachusetts assault and battery
was a crime of violence. Jones, 253 F.3d at 347.
Because the Seventh Circuit and the First Circuit disagreed
about the importance of the charging language, Damon's
conclusion that the petitioner's claim was both futile in
the First Circuit and not novel thus does not conflict with
Reed. Damon, 732 F.3d at 4. The existing
circuit split failed the Reed unanimity or
near-unanimity requirement for cause, justifying
Bousley and Damon's holdings.
contrast, the monumental shift that Johnson II
created in sentencing gives the Court no pause in concluding