United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
15, 2003, petitioner Patrick O'Shea was convicted of
being a Felon in Possession of a Firearm in violation of 18
U.S.C. §922(g)(1). The maximum penalty for that offense
is ordinarily ten years. However, the court sentenced him to
the fifteen-year mandatory minimum sentence required by the
Armed Career Criminal Act (the "ACCA") based on his
prior Massachusetts state convictions for unarmed robbery,
breaking and entering, assault and battery with a dangerous
weapon, and possession with intent to distribute narcotics.
August 28, 2015, O'Shea filed a Motion to Correct his
sentence under 28 U.S.C. §2255, arguing that after the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015)("Johnson
II"), his prior convictions are no longer valid
ACCA predicates and, therefore, that the ten-year maximum
sentence under 18 U.S.C. §924(a)(2), not the ACCA
fifteen-year minimum under §924(e), applies to him.
reasons described in this Memorandum, 0'Shea's motion
is being allowed. The government correctly concedes that
01Shea's convictions for breaking and entering are not
now valid ACCA predicate offenses. See Gov.'s
Opp. (Docket No. 246) at 2 n. 1. In addition, the court finds
that unarmed robbery under Massachusetts law is also not a
valid ACCA predicate offense. Accordingly, O'Shea does
not have the three valid ACCA predicates necessary to make
him eligible for a fifteen-year mandatory minimum sentence.
Rather, the maximum permissible penalty is ten years. As
O'Shea has been in custody for more than ten years, he is
being resentenced to time-served.
15, 2003, a jury found O'Shea guilty of being a felon in
possession of a firearm, in violation of 18 U.S.C.
§922(g)(1). As explained earlier, there is ordinarily a
maximum sentence of ten years imprisonment for that offense.
However, under the ACCA, a defendant who is convicted under
18 U.S.C. §922(g) and has three prior convictions for
violent felonies or serious drug offenses is subject to a
mandatory minimum sentence of fifteen years. See 18
U.S.C. §924(e)(1). The court determined that O'Shea
was an Armed Career Criminal based on the following five
1. A 1991 conviction for unarmed robbery. See PSR at
2. A 1990 conviction for breaking and entering in the daytime
under Mass. Gen. Laws Chapter 266, §18. See PSR
3. A 1997 conviction for assault and battery with a dangerous
weapon. See PSR at ¶57.
4. A 1997 conviction for breaking and entering at night under
Mass. Gen. Laws Chapter 266, §16. See PSR at
5. A 2001 conviction for possession of heroin with intent to
distribute. See PSR at ¶67.
See Jan. 16, 2004 Transcript at 49-51; PSR at 74.
Therefore, on January 16, 2004, the court sentenced
O'Shea to the mandatory fifteen-year minimum term of
imprisonment required by the ACCA, 60 months Supervised
Release, and a $100 special assessment.
conviction and sentence were affirmed by the First Circuit.
See United States v. O'Shea, 426 F.3d 475 (1st
Cir. 2005). O'Shea has been in federal custody since May
15, 2003, and has now served more than fourteen years of his
1, 2006, O'Shea filed a Motion to Vacate his Conviction
and Sentence under 28 U.S.C. §2255 alleging ineffective
assistance of counsel. See Docket No. 175. On
September 30, 2009, the court denied that motion.
See Docket No. 17 6.
26, 2015, the Supreme Court decided Johnson II,
which, as explained below, invalidated the "residual
clause" of the ACCA. See 135 S.Ct. at 2563. On
August 28, 2015, O'Shea filed the instant petition,
arguing that, in light of Johnson II, he no longer
has at least three prior convictions that constitute violent
felonies or serious drug offenses under the ACCA. He argues
that the ten-year maximum sentence is, therefore, applicable
to him, and that he should be released from custody because
he has served more than ten years in prison. The government
initially opposed the motion on the grounds that it was a
second or successive petition for which O'Shea had not
sought leave to file. However, on May 13, 2016, the First
Circuit authorized O'Shea to pursue his petition.
See Docket No. 232.
Review Under 28 U.S.C. §2255
prisoner in federal custody may collaterally attack his
sentence under 28 U.S.C. §2255. As the First Circuit has
Section 2255 contemplates four potential bases on which a
federal prisoner may obtain relief: (1) "that the
sentence was imposed in violation of the Constitution or laws
of the United States"; (2) "that the court was
without jurisdiction to impose such sentence"; (3)
"that the sentence was in excess of the maximum
authorized by law"; or (4) that the sentence "is
otherwise subject to collateral attack." 28 U.S.C.
Damon v. United States, 732 F.3d 1, 3 (1st Cir.
2013) (quoting 28 U.S.C. §2255(a)). In an action under
§2255, "[t]he burden of proof is on the
petitioner." Wilder v. United States, 806 F.3d
653, 658 (1st Cir. 2015), cert, denied, 136 S.Ct.
a prisoner challenging his sentence under §2255 may not
rely on a rule of law that was announced after his conviction
became final. See Butterworth v. United States, 775
F.3d 459, 463 (1st Cir.), cert, denied, 135 S.Ct.
1517 (2015). However, when the Supreme Court announces a new
substantive criminal rule or a "watershed rule of
criminal procedure, " that new rule applies
retroactively on collateral review. Schriro v.
Summerlin, 542 U.S. 348, 351-52 (2004) (internal
quotation omitted). This includes collateral review under
§2255. See Sepulveda v. United States, 330 F.3d
55, 59 (1st Cir. 2003).
The Armed Career Criminal Act
explained earlier, under the ACCA, a defendant who is
convicted under 18 U.S.C. §922(g) and has three prior
convictions for violent felonies or serious drug offenses is
subject to a mandatory minimum sentence of fifteen years.
See 18 U.S.C. §924 (e)(1). The ACCA defines a
"violent felony" as "any crime punishable by
imprisonment for a term exceeding one year" that: (1)
"has as an element the use, attempted use, or threatened
use of physical force against the person of another;"
(2) "is burglary, arson, or extortion, [or] involves use
of explosives;" or (3) "otherwise involves conduct
that presents a serious potential risk of physical injury to
another." Id. §924(e)(2)(B). These clauses
are referred to respectively as the force clause, the