United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO VACATE AND CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
a proceeding to vacate and correct a sentence pursuant to 28
U.S.C. § 2255. In 2014, Ernesto Monell was sentenced
under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), to a term of imprisonment of 262
months. In 2015, the Supreme Court ruled that the
“residual clause” of the ACCA was
unconstitutionally vague. Johnson v. United States,
135 S.Ct. 2551 (2015) (“Johnson II”).
has moved to vacate and correct his sentence. He contends
that in light of Johnson II, he should not have been
sentenced as an armed career criminal. For the reasons stated
below, the motion will be granted.
December 23, 2013, following a jury trial, Ernesto Monell was
convicted of two charges: being a felon in possession of
firearms and ammunition in violation of 18 U.S.C. §
922(g)(1) and possession of cocaine base with intent to
distribute in violation of 21 U.S.C. § 841(a)(1).
pre-sentence report (“PSR”) stated that Monell
was subject to an enhanced sentence on the
felon-in-possession charge under the ACCA. The PSR described
six qualifying convictions, committed on four separate
occasions, all in Massachusetts state courts:
1. On September 24, 1996, Monell was convicted of (a)
possession of a Class B substance with intent to distribute
and (b) possession with intent to distribute drugs in a
2. On February 11, 1997, he was convicted of (a) armed
assault with intent to murder and (b) two counts of assault
and battery with a dangerous weapon.
3. On December 8, 2004, he was convicted of assault and
battery on a correctional officer.
4. On July 20, 2009, he was convicted of assault and battery
with a dangerous weapon.
(PSR at 12-16).
provided a brief factual description of each predicate
offense, to which Monell did not object. (Docket No. 235).
Monell also did not object to the finding that he qualified
as an armed career criminal.
3, 2014, Monell was sentenced. His counsel requested the
imposition of the mandatory minimum sentence under the ACCA
of fifteen years' imprisonment. (Docket No. 232). The
Court concluded that Monell qualified as an armed career
criminal, and that he was subject to the enhanced penalties
of the ACCA. He was then sentenced to a term of imprisonment
of 262 months on the felon-in-possession count and 240 months
on the drug count, to be served concurrently. (Docket No.
appealed both his conviction and sentence. His challenge to
the sentence was that the court had made a clearly erroneous
factual finding as to whether he had attempted to obstruct
justice. United States v. Monell, 801 F.3d 34, 51
(1st Cir. 2015). He did not appeal the court's finding
under the ACCA, and did not challenge the constitutionality
of the statute. Id.. On September 2, 2015, the First
Circuit affirmed the conviction and sentence. Id. He
petitioned for a writ of certiorari, which was denied on
January 11, 2016. Monell v. United States, 136 S.Ct.
meantime, on June 26, 2015, the United States Supreme Court
issued its opinion in Johnson II, holding that the
residual clause of the ACCA was unconstitutional. 135 S.Ct.
2551, 2563 (2015). In April 2016, after Monell's petition
for a writ of certiorari was denied, the Supreme Court held
that Johnson II had retroactive effect on collateral
review. Welch v. United States, 136 S.Ct. 1257, 1268
3, 2016, the Court appointed counsel to consider a possible a
claim for collateral relief pursuant to Johnson II.
On May 10, 2016, shortly after he had been appointed counsel,
Monell filed a pro se motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255,
alleging a claim for ineffective assistance of counsel. On
May 31, 2016, he filed an additional pro se motion
to amend the petition. On June 24, 2016, he moved, through
counsel, to “amend and supplement” his petition
to allege new claims under Johnson II.
amended petition alleges that Monell should not have been
sentenced as an armed career criminal in light of Johnson
II. Accordingly, he has moved that the court vacate and
correct his sentence. The government contends that the
petition should be denied because Monell has procedurally
defaulted his claim or, in the alternative, because his
predicate offenses qualify under the “force
clause” of the ACCA.
Whether Monell Has Procedurally Defaulted
relief in a § 2255 proceeding is unavailable if a
petitioner has procedurally defaulted on his claim by failing
to raise it at trial or on direct appeal. Berthoff v.
United States, 308 F.3d 124, 127-28 (1st Cir. 2002)
(citing Bousley v. United States, 523 U.S. 614, 622
(1998)). A petitioner can avoid that bar if he can show both
“(1) ‘cause' excusing his . . . procedural
default, and (2) ‘actual prejudice' resulting from
the errors of which he complains.” United States v.
Frady, 456 U.S. 152, 168 (1982); see also Murray v.
Carrier, 477 U.S. 478, 493-94 (1986). In an
“extraordinary case, ” a petitioner who cannot
show cause and prejudice for a procedural default may
nevertheless be excused upon a showing that he is
“actually innocent.” Murray, 477 U.S. at
496. In this context, “‘[a]ctual innocence'
means factual innocence, not mere legal insufficiency.”
Bousley, 523 U.S. at 623.
did not argue, either at the time of sentencing or in his
appeal, that the ACCA was unconstitutionally vague or that he
did not qualify as an armed career criminal. He has therefore
procedurally defaulted as to that claim. However, he contends
that he has shown both cause and prejudice to excuse his
cause, a petitioner must demonstrate that “some
objective factor external to the defense” prevented him
from raising a constitutional claim on direct appeal.
Murray, 477 U.S. at 488. The Supreme Court has held
that a finding of cause is warranted where the petitioner
shows that, at the time of the direct appeal, “the
factual or legal basis for a claim was not reasonably
available to counsel.” Id. (citing Reed v.
Ross, 468 U.S. 1, 16 (1984)). To show that there was no
legal basis for the defaulted claim at the time of the direct
appeal, it is not sufficient for a petitioner to show that
the claim likely would have been futile based on
then-existing precedent. See Engle v. Isaac, 456
U.S. 107, 130 n.35 (1982). Rather, a petitioner seeking
relief based on a change in the law must show that the
“constitutional claim is so novel that its legal basis
[was] not reasonably available to counsel.”
Reed, 468 U.S. at 16. A claim is sufficiently novel
to warrant a finding of cause if it is based on a Supreme
Court opinion that (1) “explicitly overrule[s]”
prior Supreme Court precedent; (2) overturns “a
longstanding and widespread practice to which [the Supreme
Court] ha[d] not spoken, but which a near-unanimous body of
lower court authority ha[d] expressly approved;” or (3)
“disapprove[s] a practice [the Supreme Court] arguably
ha[d] sanctioned in prior cases.” Id. at 17
(quoting United States v. Johnson, 457 U.S. 537, 558
contends that he can demonstrate cause based on the first
prong of the Reed test. In April 2007, the Supreme
Court decided James v. United States, upholding an
offender's sentence under the residual clause of the
ACCA. 550 U.S. 192, 214 (2007) overruled by Johnson
II, 135 S.Ct. 2551 (2015). Justice Scalia dissented from
the court's opinion, suggesting that the residual clause
was void for vagueness. Id. at 216-17. The majority
explicitly rejected that contention, stating, “we are
not persuaded . . . that the residual provision is
unconstitutionally vague.” Id. at 210 n.6.
That holding was reaffirmed four years later in
Sykes, with Justice Scalia again in dissent. See
Sykes v. United States, 564 U.S. 1, 16, 28 (2011)
overruled by Johnson II, 135 S.Ct. 2551 (2015). In
June 2015, the Supreme Court decided Johnson II,
this time with Justice Scalia writing for the majority,
holding that the residual clause was unconstitutionally vague
and that the court's “contrary holdings in
James and Sykes are overruled.”
Johnson II, 135 S.Ct. at 2563.
certainly true that James and Sykes were
controlling Supreme Court precedent at the time of
Monell's sentencing. Nonetheless, there is substantial
doubt as to whether the claim of unconstitutionality was not
a legal argument reasonably available to counsel.
Monell's brief in the First Circuit was filed in January
2015. At the time, the Supreme Court had heard argument in,
but had not yet decided, Johnson II. See Johnson
II, 135 S.Ct. at 2551. The government's brief in
opposition was filed on May 29; Johnson II was
decided on June 26; and Monell's reply brief was filed on
June 30, four days later. Under the circumstances, the result
in Johnson II was hardly unforeseeable in January
2015, and Monell could have easily included such a challenge
in his appellate briefs.
and although it is a close question, it appears that
Monell's claim satisfies the Reed test. As
noted, James and Sykes had not been
overruled, much less “explicitly overruled, ” at
the time Monell filed his appeal. And while it was unlikely
that the Supreme Court would have granted certiorari in
Johnson II simply to reaffirm those holdings, that
was not a certainty. Furthermore, although Johnson
II was decided four days before Monell filed his reply
brief, counsel's failure to raise the issue in that
pleading is hardly surprising, because the usual rule is that
new arguments cannot be advanced for the first time in a
reply brief. See United States v. Matos, 611 F.3d
31, 38 (1st Cir. 2010).
the circumstances, the Court finds that Monell has
demonstrated sufficient cause for his procedural default