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Virden v. United States

United States District Court, D. Massachusetts

February 3, 2017



          Leo T. Sorokin United States District Judge

         Michael Virden, a federal prisoner, has filed a counseled motion seeking correction of his sentence pursuant to 28 U.S.C. § 2255 and Johnson v. United States, 135 S.Ct. 2551 (2015). Doc. No. 153. The motion is fully briefed, including supplemental submissions from both parties on new legal developments that have unfolded while the matter has been pending, and the parties appeared for a conference to address issues related to the motion on January 25, 2017. For the reasons that follow, Virden's motion is ALLOWED, and resentencing is required, as he no longer is an armed career criminal.

         I. BACKGROUND

         On June 21, 2010, following a jury trial, Virden was convicted of possessing a firearm in violation of 18 U.S.C. § 922(g)(1).[1] Doc. No. 51. He was sentenced on September 21, 2010, to fifteen years in prison, the mandatory minimum sentence for the offense under the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e). Virden lodged objections to his status as an armed career criminal before his sentencing - including that Massachusetts state criminal convictions for assault and battery with a dangerous weapon (“ABDW”), and “guilty filed” charges in Massachusetts state court, do not qualify as predicate offenses for ACCA purposes. The Court (Tauro, J.) did not specifically rule on those objections, and sentenced Virden as an armed career criminal. Virden did not repeat his objections to the ACCA predicates in his direct appeal.

         Six months after the First Circuit affirmed Virden's conviction and sentence, Virden filed a timely pro se motion pursuant to § 2255.[2] Doc. No. 107. That motion was denied.[3] Doc. Nos. 116, 119.

         On January 7, 2016, the First Circuit granted Virden permission to file a second or successive motion under § 2255 based on Johnson, which provided a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Doc. No. 142 (quoting 28 U.S.C. § 2255(h)(2)). In his second § 2255 motion, [4]Virden contends he is no longer an armed career criminal, because he does not have three prior convictions that qualify as predicates under the ACCA.[5] See generally Doc. No. 153. The government has ceased to rely on several of Virden's prior convictions, conceding they no longer qualify as ACCA predicates. Doc. No. 181 (explicitly disavowing reliance on resisting arrest as an ACCA predicate); see also Doc. No. 162 at 3 n.4 (invoking procedural default argument only as to ABDW charges, and not as to prior convictions for assault and battery, resisting arrest, or larceny from the person); Doc. No. 153 at 18 (citing government's concession in previous case that larceny from the person is not a violent felony). And, Virden concedes, at least implicitly, that his prior conviction in Massachusetts state court for possession of a Class B substance with intent to distribute does qualify as an ACCA predicate. See Doc. No. 153 at 3 (attacking all other predicates); see also 18 U.S.C. § 924(e)(1) & (2)(A) (classifying “serous drug offense[s]” as ACCA predicates and defining that term).

         Virden's motion, then, is reduced to two issues: 1) whether ABDW constitutes a violent felony and, thus, an ACCA predicate post-Johnson; and 2) whether a “guilty filed” charge in Massachusetts can constitute a conviction and, thus, an ACCA predicate. See generally Doc. No. 178. If either question is considered on its merits and resolved in Virden's favor, his second § 2255 motion must be allowed.

         The government opposes Virden's motion, first urging the Court to part ways with every other District Judge in this jurisdiction to have considered the issue by rejecting Virden's claims as procedurally defaulted, and also arguing that ABDW categorically is a violent felony that qualifies as a predicate offense under the ACCA's force clause. Doc. No. 162. I disagree with the government on both counts.


         A. Relevant Legal Standards

         Post-conviction relief pursuant to § 2255 is an extraordinary remedy, available only to a defendant who makes “a sufficient showing of fundamental unfairness.” Singleton v. United States, 26 F.3d 233, 236 (1st Cir. 1994). Federal habeas relief is available to Virden only if his sentence was imposed in violation of the Constitution or laws of the United States, was imposed by a court which lacked jurisdiction over the criminal charge, exceeded the maximum penalty authorized by law, or otherwise is subject to collateral attack. See David v. United States, 134 F.3d 470, 474 (1st Cir. 1998) (describing limited nature of § 2255 relief). Virden bears the burden of establishing that he is entitled to relief.[6] Id.

         If a federal prisoner fails to preserve an attack on his sentence by presenting it to the trial court and pursuing it on direct appeal, he risks dismissal of the claim in a subsequent § 2255 proceeding for procedural default. See Bucci v. United States, 662 F.3d 18, 29 (1st Cir. 2011). When a claim has been procedurally defaulted, a prisoner may pursue it on collateral review only if he demonstrates cause for the default and actual prejudice flowing therefrom, or if he establishes that failure to address the claim on its merits would result in a miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998); Murray v. Carrier, 477 U.S. 478, 495 (1986).

         Under the ACCA, a defendant convicted of being a felon in possession of a firearm is an “armed career criminal” and, as a result, faces a mandatory minimum sentence of fifteen years in prison if he has three prior convictions, each “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1); see also Johnson, 135 S.Ct. at 2555. When Virden was sentenced, a “violent felony” was defined as:

Any crime punishable by imprisonment for a term exceeding one year . . . that - (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct ...

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