United States District Court, D. Maine
DECISION AND ORDER ON JOHNSON CLAIM IN PETITIONER’S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
D. Brock Hornby United States District Judge.
In 2011, a jury convicted Eric Murdock of being a felon in possession of firearms. 18 U.S.C. § 922(g)(1). At his 2012 sentencing, I determined that Murdock had been convicted of three qualifying prior crimes of violence and accordingly sentenced him to 216 months under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Sentencing Tr. at 27-29 (ECF No. 118); Judgment at 2 (ECF No. 110). Without Armed Career Criminal status, Murdock’s maximum sentence would have been 10 years. 18 U.S.C. § 924(a)(2). The First Circuit affirmed the conviction and sentence. United States v. Murdock, 699 F.3d 665, 667 (1st Cir. 2012).
In May 2014, Murdock filed a motion under 28 U.S.C. § 2255, alleging that he received ineffective assistance of counsel in a number of ways. Mot. under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 135). The government requested summary dismissal on the basis that the section 2255 motion was not timely. Gov’t Mot. for Summary Dismissal (ECF No. 144). I concluded that Murdock had made a prima facie demonstration that the motion was timely. Order Affirming Recommended Dec. (ECF No. 159); Recommended Dec. (ECF No. 156).
Following the Supreme Court’s decision in Johnson v. United States, U.S. ___, 135 S.Ct. 2551 (2015), holding the ACCA’s residual clause unconstitutional, Murdock filed a request to include a claim, based on Johnson, that he was entitled to relief from his ACCA sentencing. Pet.’s Request for Judicial Notice of Supplemental Authority (ECF No. 163). In response, the government requested summary dismissal of Murdock’s section 2255 motion, including the Johnson claim, on the merits. Gov’t Mot. for Summary Dismissal (ECF No. 169). In its response, the Government argued that Murdock is not entitled to relief because his sentencing enhancement should be upheld under an alternate clause of the ACCA.
Both parties have agreed that bifurcation is appropriate to decide the Johnson issue first. (Rpt. of Tele. Conference & Order (ECF No. 175); Pet.’s Agreement to Bifurcation (ECF No. 183); Gov’t Reply (ECF No. 185). Therefore, this order addresses the Johnson claim only and Murdock’s related threshold procedural argument regarding untimely service of the government’s request for summary dismissal. I Deny Murdock’s motion to strike due to a lack of service (ECF No. 182), and I Deny Murdock’s motion to vacate to the extent that it is based on Johnson.
(1) Untimely service of the government’s request for summary dismissal.
Murdock argues that the government failed to effect proper service of its response on both the merits and the Johnson claim, i.e., ECF No. 169. Pet.’s Mot. to Strike (ECF No. 182). The government filed its response on August 25, 2015 (ECF No. 169); Murdock admits that he received the government’s response on September 14, 2015; the court granted Murdock’s motion for withdrawal of counsel on October 1, 2015; and also on October 1, 2015, the court granted Murdock an extension to November 24, 2015, to reply to the government’s request for dismissal. Pet.’s Mot. to Strike at 3 (ECF No. 182); Orders (ECF Nos. 178, 179). Because Murdock had sufficient time to file a reply memorandum, he was not prejudiced by any delay in his receipt of the government’s request for summary dismissal. On that basis, I reject Murdock’s argument regarding service of the government’s response and Deny the motion to strike.
(2) Johnson v. United States
In Johnson, 135 S.Ct. at 2563, the Supreme Court dealt with the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), which includes within the definition of “violent felony” any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court held that language to be unconstitutionally vague. Johnson, 135 S.Ct. at 2557, 2563. But the Court explicitly limited its holding, stating: “Today’s decision does not call into question application of the Act to the four enumerated offenses,  or the remainder of the Act’s definition of a violent felony.” Id. at 2563 (footnote and emphasis added). The “remainder of the Act’s definition of a violent felony, ” id., includes the so-called “force clause, ” defining a “violent felony” as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another, ” 18 U.S.C. § 924(e)(2)(B)(i). I review Murdock’s predicate convictions under that language.
First, however, Murdock relies on an earlier case called Johnson v. United States, 559 U.S. 133 (2010), to argue that this court may not uphold his ACCA sentencing enhancement under the force clause, because neither the government nor this court relied on that clause at sentencing. Pet.’s Opp’n at 10-11 (ECF No. 189); Pet.’s Supp’l Mem. at 3 (ECF No. 190). In its 2010 Johnson decision, the Supreme Court held that a Florida prior conviction did not qualify as an ACCA violent felony under the force clause. Johnson, 559 U.S. at 136-40. But the Supreme Court declined to remand the case to determine whether the prior conviction qualified as an ACCA predicate under a different clause because the government had expressly disclaimed at sentencing any reliance on that other clause. Id. at 145. Murdock points to no express disclaimer of the force clause by the government at his sentencing. In the absence of an express disclaimer, I see no reason why re-examination of his previous convictions should not include whether they qualify on grounds other than the residual clause.
Murdock’s three predicate crimes that gave him ACCA status were (1) a 1979 Virginia robbery conviction, (2) a 1989 Massachusetts conviction for assault and battery with a dangerous weapon, and (3) a 2007 Florida aggravated assault conviction. Sentencing Tr. at 5-6 (ECF No. 117); Sentencing Tr. at 27 (ECF No. 118); Mass. Docket Sheet (ECF No. 169-2); Fla. Judgment (ECF No. 169-3); Va. Judgment (ECF No. 169-4).
Murdock appropriately concedes that the Virginia conviction qualifies categorically as an ACCA predicate violent felony. Pet.’s Response at 9 (ECF No. 189); Pet.’s Aff. at 2 (ECF No. 189-1).
Murdock’s Massachusetts conviction for assault and battery with a dangerous weapon also qualifies categorically as a predicate violent felony under the ACCA’s force clause. At the time of Murdock’s offense in 1989, the ...