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Craig v. United States

United States District Court, D. Maine

October 7, 2016

MARQUIS A. CRAIG, Petitioner,



         Before the Court is Petitioner Marquis Craig's Amended Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 222). For the reasons briefly explained herein, the Motion is GRANTED.


         Petitioner Craig is currently serving a 246-month sentence as a result of pleading guilty to four counts of a six-count indictment: Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count One); use of a firearm in connection with a crime of violence (the Hobbs Act robbery), 18 U.S.C. § 924(c)(1)(B)(i) (Count Two); possession of a sawed-off shotgun, 26 U.S.C. § 5861(d) (Count Three); and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count Six). With respect to Count Six, Craig was found to be an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because he had at least three prior convictions for a “violent felony.”[1] Specifically, the Presentence Investigation Report (PSR) identified four separate ACCA-qualifying convictions: (1) two Massachusetts convictions for Assault and Battery on a Police Officer (PSR ¶¶ 25, 28); (2) one Massachusetts conviction for Breaking and Entering at Nighttime with Intent to Commit a Felony (PSR ¶ 26); and (3) one Massachusetts conviction for Assault and Battery with a Dangerous Weapon (PSR ¶ 27).[2] (See PSR ¶ 20.) The PSR calculated that the guideline sentencing range for imprisonment on Counts One, Three, and Six, with an adjustment for acceptance of responsibility, was 188 to 235 months. (PSR ¶ 42.) Without the ACCA enhancement on Count Six, the sentencing range for Counts One, Three, and Six would have been 110 to 137 months. (See PSR ¶¶ 19, 21, 31.) On December 12, 2001, the Court sentenced Craig to 246 months imprisonment: 150 months (12.5 years) on Counts One and Six and 120 months (10 years) on Count Three, all to run concurrently, plus a consecutive sentence of 96 months (8 years) on Count Two pursuant to 18 U.S.C. § 924(c)(1)(B)(i).[3] (ECF No. 128.) Craig did not appeal his conviction or his sentence.[4]


         Craig makes two major arguments in support of his motion. First, he contends that, in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2251 (2015) (Johnson II), his sentence on Count Six must be vacated because he no longer has the three requisite convictions for an increased sentence under ACCA. Specifically, he contends that he does not have three prior “violent felony” convictions without recourse to ACCA's “residual clause, ” which was struck down as unconstitutionally vague in Johnson II. Second, Craig contends that his consecutive sentence on Count Two must be vacated because the Hobbs Act robbery charged in Count One does not qualify as a predicate “crime of violence” under 18 U.S.C. § 924(c)(3). The Court first considers whether Craig has procedurally defaulted on his claims and then analyzes each of his major claims in turn.


         A. Procedural Default

         The Government has raised the issue of procedural default as an affirmative defense to Craig's motion for relief. See Oakes v. United States, 400 F.3d 92, 96-98 (1st Cir. 2005) (holding that procedural default must be raised by the Government as an affirmative defense or raised sua sponte with notice to the petitioner and an opportunity to respond). It is well established that “[c]ollateral relief in a § 2255 proceeding is generally unavailable if the petitioner has procedurally defaulted his claim by fail[ing] to raise [the] claim in a timely manner at trial or on [direct] appeal.” Bucci v. United States, 662 F.3d 18, 27 (1st Cir. 2011) (alteration in original) (internal quotation marks omitted). Craig did not raise his claims at the time of his sentencing and he did not appeal.[5]Craig therefore procedurally defaulted on the claims in his motion for sentencing relief.

         However, this procedural default may be excused if he “can show both (1) ‘cause' for having procedurally defaulted his claim; and (2) ‘actual prejudice' resulting from the alleged error.” Bucci, 662 F.3d at 27.[6] Because, as discussed below, Craig is entitled to relief, he has shown “actual prejudice.” See Strickler v. Greene, 527 U.S. 263, 289 (1999) (describing “prejudice” showing as a “reasonable probability” that the challenged result would have been different but for the claimed error). The question, then, is whether he has shown “cause” for his default. Generally, a habeas petitioner can demonstrate “cause” for the procedural default of a constitutional claim when, at the time of the initial judgment or on direct appeal, the claim was “so novel that its legal basis is not reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984).[7]

         In Reed v. Ross, the Supreme Court stated that “[b]y definition” when a decision of the Supreme Court “explicitly overrule[s]” Supreme Court precedent, “there will almost certainly have been no reasonable basis upon which an attorney previously could have urged a [] court to adopt the position that this Court has ultimately adopted.” Id. at 17. The Supreme Court explicitly overruled its precedent in Johnson II, see 135 S.Ct. at 2563, and Craig's claims are based on that decision. Therefore, it would seem apparent that there is cause for Craig's default. Indeed, many district courts, including this Court, have refused to declare Johnson II claims procedurally defaulted. See Tosi v. United States, No. 2:12-cr-100-GZS, 2016 WL 5107078, at *2 n.7 (D. Me. Sept. 20, 2016), appeal docketed, No. 16-2225 (1st Cir. Oct. 3, 2016); see also, e.g., United States v. Harris, No. 1:CR-06-0268, 2016 WL 4539183, at *4 (M.D. Pa. Aug. 31, 2016) (finding petitioner's procedural default excused and collecting other cases finding cause to excuse procedural default of a Johnson II claim).

         The Government points to Bousley v. United States, in which the Supreme Court concluded that a claim based on new Supreme Court case law did not meet the Reed standard for unavailability because “at the time of petitioner's plea, the Federal Reporters were replete with cases” making the legal claim he failed to raise.[8] 523 U.S. 614, 622 (1998). The Government contends that Craig's claims premised on the unconstitutionality of ACCA's residual clause are not “novel” because the Supreme Court and lower federal courts had been struggling with the constitutionality of the residual clause for years before the decision in Johnson II. (Gov't Response (ECF No. 236) at 6.) It is true that, following Bousley, courts in this circuit have found that claims are not “novel” when they had been raised in other proceedings and adjudicated in other courts, or when evolving Supreme Court case law suggested the viability of the claims. See, e.g., Damon v. United States, 732 F.3d 1, 4-5 (1st Cir. 2013); United States v. Dean, 231 F.Supp.2d 382, 386- 87 (D. Me. 2002); see also Derman v. United States, 298 F.3d 34, 44 n.6 (1st Cir. 2002) (compiling cases in which courts determined in the context of procedural default that petitioners could have foreseen the Supreme Court's Apprendi decision); McCoy v. United States, 266 F.3d 1245, 1258-59 (11th Cir. 2001) (noting with approval cases suggesting that Apprendi-based arguments on collateral review were not novel because of the long history of “Apprendi-like” arguments pre-dating the Supreme Court's Apprendi decision).

         The Court concludes, however, that Bousley did not affect the core of the Reed unavailability analysis and that Craig has shown cause for his default because his claims are based on a Supreme Court decision that explicitly overruled Supreme Court precedent.[9] See Simpson v. Matesanz, 175 F.3d 200, 212 (1st Cir. 1999) (“In the absence of better guidance, we will assume arguendo that the familiar Reed unavailability standard is still good law, subject to Bousley's caveat that an argument is not unavailable simply because it has been rejected by a higher court in a different case.”) It is thus unnecessary to undertake the difficult task of determining whether Craig should have foreseen the Johnson II decision despite the fact that the time for a direct appeal terminated years before the major Supreme Court decisions grappling with the constitutionality of ACCA's residual clause. Concluding that Craig has cause for his procedural default, the Court turns to the merits of his claims.

         B. Massachusetts Convictions for Assault and Battery ...

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