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United States v. Webb

United States District Court, D. Massachusetts

November 9, 2016





         On 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.

         A. Webb and Meadows's Sentencings and Further Proceedings

         On 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.

         An 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 crime[1]that 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).

         When 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, Meadows.

         B. Ensuing Legal Developments

         Years 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. at 1264-65.

         C. The Defendants' Current Section 2255 Petitions

         Following Johnson II and Welch, the Defendants filed second or successive Section 2255 petitions on June 14, 2016, (Webb), and on June 19, 2016, (Meadows).[2] 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) .

         Webb's 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.

         As for 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.

         II. ANALYSIS

         This 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).

         The Court proceeds to analyze whether the Defendants have met the cause and prejudice prongs that would excuse them from procedural default.[3]

         A. Cause

         Without 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").

         Reed 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."[4] Id. (citations omitted).

         In the 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, Meadows.

         This 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.[5] See James, 550 U.S. at 210 n.6; Johnson II, 135 S.Ct. at 2563.

         Webb's 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.

         The 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.

         Adopting 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.").

         Even 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.

         In contrast, the monumental shift that Johnson II created in sentencing gives the Court no pause in concluding that ...

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