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Monell v. United States

United States District Court, D. Massachusetts

May 5, 2017

ERNESTO MONELL, Petitioner,
v.
UNITED STATES, Respondent.

          MEMORANDUM AND ORDER ON MOTION TO VACATE AND CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         This is 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”).

         Monell 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.

         I. Background

         On 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).

         The 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 school zone.
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.[1]
4. On July 20, 2009, he was convicted of assault and battery with a dangerous weapon.

(PSR at 12-16).

         The PSR 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.

         On June 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. 237).

         Monell 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. 864 (2016).

         In the 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 (2016).

         On May 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.[2]

         II. Analysis

         The 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.

         A. Whether Monell Has Procedurally Defaulted

         Collateral 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.

         Monell 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 default.

         1.Cause

         To show 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 (1982)).

         Monell 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.

         It is 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.[3] 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.

         Nonetheless, 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).

         Under the circumstances, the Court finds that Monell has demonstrated sufficient cause for his procedural default ...


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