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Collins v. United States

United States District Court, D. Massachusetts

January 24, 2019

MICHAEL COLLINS, Petitioner,
v.
UNITED STATES, Respondent

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE

         January 24, 2019 This matter has its origin in the conviction of the Petitioner, Michael Collins, for being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). On January 23, 2014, Mr. Collins was sentenced to 15 years in prison as an armed career criminal subject to the sentencing enhancement imposed by the Armed Career Criminal Act (“ACCA”). Mr. Collins filed the present petition for habeas corpus to vacate and correct his sentence under 28 U.S.C. § 2255 in 2016, arguing that, in light of Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”), he was not properly characterized as an armed career criminal subject to the ACCA's enhancement. Case law in the First Circuit since Johnson II undermines the contentions which are offered in the petition.

         I. BACKGROUND

         A. Factual Background.

         On June 25, 2013, Mr. Collins was charged in a one count indictment as a felon in possession of a firearm (a Norinco, Model SKS, 7.62 millimeter rifle), in violation of 18 U.S.C. § 922(g)(1).

         Both the Presentence Investigation Report (“PSR”) prepared by the Probation Office and the Government's Sentencing Memorandum, stated that Mr. Collins had at least three prior state convictions and therefore qualified as an Armed Career Criminal. In particular, the PSR listed the following convictions which could be considered predicate offenses for the purpose of the ACCA sentencing enhancement:

(1) March 6, 1990 conviction in Boston Municipal Court for Larceny from the Person and Assault and Battery by a Dangerous Weapon, [PSR ¶ 32];

(2) June 18, 1992 convictions in Suffolk Superior Court for Armed Assault with Intent to Kill and Assault and Battery by a Dangerous Weapon, [PSR ¶ 35];

(3) July 2, 1992 conviction in Middlesex Superior Court for Assault and Battery by a Dangerous Weapon, [PSR ¶ 36];

(4) August 12, 1992 convictions in Cambridge District Court for Assault and Battery by a Dangerous Weapon, [1][PSR ¶ 34];

(5) October 15, 2001 convictions in Suffolk Superior Court for Armed Robbery, Armed Assault with Intent to Rob, Kidnapping, and Assault with a Dangerous Weapon, [PSR ¶ 39]; and,

(6) October 16, 2008 conviction in West Roxbury District Court for Assault with a Dangerous Weapon.[2] [PSR ¶ 47].

         In addition, the Government's Sentencing Memorandum referenced a July 27, 2005 conviction in Somerville District Court for Breaking and Entering a Building in the Nighttime as a predicate offense, although the PSR did not include this particular conviction in its list of predicate offenses.

         On January 17, 2014, Mr. Collins filed his own sentencing memorandum, and objected generally to his classification as an Armed Career Criminal because his prior convictions were not charged, admitted to, or proven by the Government. I rejected that argument and sentenced him as an armed career criminal to the mandatory minimum sentence required by the ACCA of 15 years incarceration. He did not appeal.

         If Mr. Collins had not been classified as an armed career criminal, he would have been subject to, at most, ten years incarceration - the statutory maximum penalty for a violation of 18 U.S.C. § 922 in the absence of the ACCA sentencing enhancement. See 18 U.S.C. §§ 922(g)(1), 924(a)(2).

         B. The Current Legal Context

         The ACCA imposes a mandatory minimum sentence of 15 years incarceration for “[any] person who violates section 922(g) . . . and has three previous convictions by any court . . . 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). The statute defines a “violent felony” as any felony that either “(i) has as an element the use, attempted use, or threated use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the 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).

         In 2015, the Supreme Court struck down part of the second clause of 18 U.S.C. § 924(e)(2)(B), the so-called residual clause, as unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2557 (2015) (Johnson II). “[T]he residual clause, ” the Court held, “leaves grave uncertainty about how to estimate the risk posed by a crime” because it “ties the judicial assessment of risk to a judicially imagined ‘ordinary case' of a crime.” Id. It also “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony, ” especially because the residual clause required judges to apply “an imprecise ‘serious potential risk' standard” to “a judge-imagined abstraction.” Id. at 2558. However, the Court left in place the first clause of ACCA, known as the force clause, and the portion of the second clause that classifies “burglary, arson, or extortion” or any crime that “involves the use of explosives” as violent felonies under the statute. 18 U.S.C. § 924(e)(2)(B).

         The following year, the Supreme Court held that “Johnson [II] announced a substantive rule that has retroactive effect in cases on collateral review.” Welch v. United States, 136 S.Ct. 1257, 1268 (2016). A few months later, Mr. Collins petitioned through the motion now before me to have me vacate and correct his sentence pursuant to 28 U.S.C. § 2255.

         C. The Instant Petition

         Mr. Collins now contends in his petition that he was improperly characterized as an armed career criminal under 18 U.S.C. § 924(e) because certain predicate convictions may not properly be counted in reaching the threshold for Armed Career Criminal status. In particular, he argues that his convictions for larceny from the person, assault and battery with a dangerous weapon, assault with a dangerous weapon, [3] and armed assault with intent to kill are not categorically violent felonies under the force clause of ACCA. He also argues, albeit in a footnote, that his conviction for breaking and entering was not a violent felony under the force clause, observing correctly that neither the PSR nor I relied on that conviction during his original sentencing when determining that he was an armed career criminal.

         II. PROCEDURAL DEFAULT

         Although not raised in the Government's opposition to Mr. Collins's petition, which focuses on the merits, I consider it important to address a threshold question: whether Mr. Collins claims are procedurally barred.[4] Although Mr. Collins did object to his classification as a career offender prior to his sentencing, he did not, at that time, raise any of the arguments he raises now in his request for habeas relief; nor did Mr. Collins seek direct review of his sentence. Consequently, his claims may be considered procedurally defaulted. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 81 (1977); Bousley v. United States, 523 U.S. 614, 622 (1998).

         As a general matter, “procedural default is an affirmative defense, ” and must be raised and pled by the Government to bar a habeas petition. Oakes v. United States, 400 F.3d 92, 98 (1st Cir. 2005); see also Trest v. Cain, 522 U.S. 87, 89 (1997) (“[P]rocedural default is normally a defense that the State is obligated to raise and preserve if it is not to lose the right to assert the defense thereafter.”) (internal quotations omitted). Since the Government has chosen not to raise the issue of procedural default in its response to the petition for habeas relief, the issue appears to have been waived.

         Nevertheless, I may still consider procedural default sua sponte, even if I may not “bypass, override, or excuse [the government's] deliberate waiver” of an affirmative defense. Wood v. Milyard, 556 U.S. 463, 466 (2012); see also Oakes, 400 F.3d at 97 (“[W]e hold that a district court has the discretion, in a section 2255 case, to raise questions of procedural default sua sponte, even when the government has filed a reply and eschewed any reference to the defense.”). Had the Government here raised procedural default in its response to the present petition, I would have been barred from hearing the merits of Mr. Collins's claim unless he could demonstrate both cause for the default and actual prejudice. See, e.g., Wainwright, 433 U.S. at 81; Bousley, 523 U.S. at 622.

         A petitioner may show cause by demonstrating that his claim is “so novel that its legal basis is not reasonably available to counsel” at the time of conviction. Bousley, 523 U.S. at 622. However, this standard does not mean that the claim was viewed as futile, or otherwise “was unacceptable to that particular court at that particular time.” Id. at 623. Instead, for a constitutional claim to be “new, ” it must “represent[ ] a clear break with the past.” Reed v. Ross, 468 U.S. 1, 17 (1984). It may arise when the Supreme Court “explicitly overrule[s] one of [its] precedents, ” when a decision “overturn[s] 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, ” or when a decision of the Supreme Court “disapprove[s] a practice that [the Supreme Court] arguably has sanctioned in prior cases.” Id.

         The Court's holding in Johnson II clearly satisfies this standard. When Mr. Collins was sentenced in 2014, “the Supreme Court's decisions in James [v. United States, 550 U.S. 192 (2007)] and Sykes [v. United States, 564 U.S. 1 (2011)] were still good law. Both those decisions had rejected challenges to the ACCA's residual clause on constitutional vagueness grounds.” Lassend v. United States, 898 F.3d 115, 122 (1st Cir. 2018). Johnson II “expressly overruled James and Sykes in relation to the ACCA, ” meaning it signaled a “clear break from the past.” Id. at 17. Consequently, the ACCA claims raised in this ...


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