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Dimott v. United States

United States District Court, D. Maine

October 14, 2016

RICHARD DIMOTT, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER ON MOTION UNDER 28 U.S.C. § 2255

          George Z. Singal United States District Judge.

         Before the Court is Dimott's Motion under 28 U.S.C. § 2255 (ECF No. 74 in D. Me. Docket # 2:06-cr-26-GZS). The Government filed its Response opposing the Motion (ECF No. 79) on August 3, 2016. Dimott then filed his Reply (ECF No. 82) on September 8, 2016, and, with permission from the Court, the Government filed its Sur-Reply (ECF No. 85) on September 13, 2016. For the reasons explained herein, the Court now DENIES the Motion.

         I. PROCEDURAL HISTORY

         On September 10, 2007, the Court sentenced Richard Dimott on two separate pending cases. In District of Maine Docket # 2:06-cr-19-GZS, Dimott was sentenced to six months imprisonment for one count of criminal contempt. In District of Maine Docket # 2:06-cr-26-GZS, Dimott was sentenced to serve a concurrent 150 months of imprisonment on one count of being a felon in possession of a firearm. With respect to this latter charge, Dimott was found to be an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Specifically, the Court referenced “eight separate counts of burglary” in sentencing Dimott under ACCA (PSR ¶ 26), which included the following: (1) a November 30, 1990, Maine Burglary conviction (PSR ¶ 32); (2) a February 28, 1992, Maine Burglary conviction (PSR ¶ 35); (3) a July 9, 1996, Maine Burglary conviction (PSR ¶ 36); (4) a November 8, 1995, Maine Burglary conviction (PSR ¶ 37); (5) a June 16, 2000, Maine Burglary conviction consisting of two separate burglary counts (PSR ¶ 38); (6) and another June 16, 2000, Maine Burglary conviction consisting of two separate burglary counts (PSR ¶ 40).

         The Shepard-approved documents provided by the Government in connection with the pending motion provide the following additional information regarding Dimott's Maine burglary convictions:

(1) Dimott's November 30, 1990, Maine Burglary conviction (PSR ¶ 32) was a conviction for a Class C burglary in violation of 17-A M.R.S. § 401 based on his entry to a structure “namely, a place of business . . . located at 255 Congress Street.” (Gov't Ex. 1 (ECF No. 79-1) at Page ID # 521 & 523.)
(2) Dimott's February 28, 1992, Maine Burglary conviction (PSR ¶ 35) was a conviction for Class C burglary in violation of 17-A M.R.S. § 401 based on his entry to a structure “namely, a place of business . . . located on Vaughn Street.” (Gov't Ex. 2 (ECF No. 79-2) at Page ID # 531 & 532.)
(3) Dimott's July 9, 1996, Maine Burglary conviction (PSR ¶ 36) was a conviction for Class C burglary in violation of 17-A M.R.S. § 401 based on his entry to a structure “namely, a place of business . . . located at 35 Union Wharf.” (Gov't Ex. 3 (ECF No. 79-3) at Page ID # 535 & 537.)
(4) Dimott's November 8, 1995, Maine Burglary conviction (PSR ¶ 37) consisted of two counts of Class C burglary in violation of 17-A M.R.S. § 401 based on his entry to two structures: “a place of business . . . located at 53 York Street” (Count I) and “a place of business . . . located at 30 Danforth Street” (Count II). (Gov't Ex. 4 (ECF No. 79-4) at Page ID # 545-46 & 548.)
(5) Dimott's June 16, 2000, Maine Burglary conviction (PSR ¶ 38) consisted of two separate burglary counts, which are both listed as Class B crimes in violation of 17-A M.R.S. § 401(C). Count I alleges entry to “a structure, namely an office trailer, operated by Thaxter Company, located at 856 Brighton Avenue.” (Gov't Ex. 5 (ECF No. 79-5) at Page ID # 556.) Count III alleges entry to “a structure, namely The Breakwater School, located at 856 Brighton Avenue.” (Gov't Ex. 5 at Page ID # 557.)
(6) Dimott's other June 16, 2000, Maine Burglary conviction (PSR ¶ 40) consisted of two separate burglary counts, which are both listed as Class B crimes in violation of 17-A M.R.S. § 401(C). Count I alleges, in relevant part, that Dimott entered “a structure, namely a garage . . . located at 33 Hawkes Street.” (Gov't Ex. 6 (ECF No. 79-6) at Page ID # 572.) Count III alleges, in relevant part, that Dimott entered “a structure, namely a garage . . . located at 23 Haskell Street.” (Gov't Ex. 6 at Page ID # 573.)

         Dimott did not file a direct appeal of the sentence imposed on September 10, 2007. His current estimated release date is March 13, 2017.

         The pending petition is Dimott's first habeas petition. Following the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II) and Mathis v. United States, 136 S.Ct. 2243 (2016), Dimott now argues that he no longer has the three requisite convictions for an increased sentence under ACCA and should have faced a statutory maximum sentence of 120 months on the felon-in-possession charge. Simply stated, he contends that Maine burglary ...


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