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United States v. Casey

United States District Court, D. Maine

November 3, 2016

UNITED STATES OF AMERICA,
v.
CHARLES H. CASEY, JR. Defendant/Petitioner Civil No. 2:16-cv-346-DBH

          DECISION AND ORDER ON PETITIONER'S MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          D. BROCK HORNBY DISTRICT JUDGE

         In 2012, Charles H. Casey, Jr. pleaded guilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). At his sentencing, I determined that Casey had been convicted of three qualifying prior crimes of violence and accordingly sentenced him to 180 months under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Judgment at 1-2 (ECF. No. 65). Without Armed Career Criminal status, Casey's maximum sentence would have been 10 years. 18 U.S.C. § 924(a)(2).[1]

         Following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), holding the ACCA's “residual” clause unconstitutional, Casey filed a motion to correct his sentence under 28 U.S.C. § 2255. Def.'s Mot. to Correct Sentence (ECF No. 68). In response, the government argued that Casey was procedurally barred from his Johnson claim and that his prior Maine burglary convictions, see 17-A M.R.S.A. § 401, still qualify as predicates under the ACCA's “enumerated” clause. Gov't Resp. in Opp'n to Def.'s Mot. to Correct Sentence (ECF No. 72).

         Because extant First Circuit caselaw holds that Casey's prior Maine burglary convictions remain qualifying enumerated violent felonies even after Johnson's invalidation of the residual clause, he is unable to show actual prejudice. I therefore Deny Casey's motion to correct his sentence.

         Analysis

         (1) Procedural Default

         The government argues that Casey is not entitled to relief because he is procedurally barred from making his Johnson claim. It is well-settled 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). At his sentencing, Casey did not argue that the residual clause of the ACCA was unconstitutionally void for vagueness, nor did he appeal his sentence. But I can excuse Casey's procedural default if he “show[s] both (1) ‘cause' for having procedurally defaulted his claim; and (2) ‘actual prejudice' resulting from the alleged error.” Bucci, 662 F.3d at 27 (quoting United States v. Frady, 456 U.S. 152, 167-68 (1982)).[2]

         (i) Cause

         According to the Supreme Court, cause is satisfied “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984).[3] The Court has identified three such instances of novelty: (1) “a decision of this Court may explicitly overrule one of our precedents”; (2) “a decision may overtur[n] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved”; and (3) “a decision may disapprov[e] a practice this Court arguably has sanctioned in prior cases.” 468 U.S. at 17 (alteration in original) (internal quotation marks omitted). The Court added that “[b]y definition, when a case falling into one of the first two categories is given retroactive application, there will almost certainly have been no reasonable basis upon which an attorney previously could have urged a state court[4] to adopt the position that this Court has ultimately adopted.” Id. In such instances, the failure of the defendant's attorney to raise the claim “is sufficiently excusable to satisfy the cause requirement.” Id.

         Casey argues that his case involves a straightforward application of Reed's first prong because in Johnson, 135 S.Ct. at 2563, the Supreme Court held that the residual clause of the ACCA violated due process, overruling its prior decisions in James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 564 U.S. 1 (2011). The Court subsequently ruled in Welch v. United States, 136 S.Ct. 1257, 1268 (2016), that Johnson announced a new substantive rule that applied retroactively to cases on collateral review.

         The government contends, however, that Casey's argument regarding the unconstitutional vagueness of the residual clause was not “novel” at the time of his sentencing. Gov't Resp. in Opp'n to Def.'s Mot. to Correct Sentence at 4-5 (ECF No. 72). In support, the government cites the declaration in Bousley v. United States that “futility cannot constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that particular time.'” 523 U.S. 614, 623 (1998) (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)). But Bousley did not deal with a case where the Supreme Court overruled its own precedents.[5] Rather, the Court recognized that, in the absence of controlling Supreme Court precedent “at the time of [Bousley]'s plea, the Federal Reporters were replete with cases involving challenges to the notion that ‘use' is synonymous with mere ‘possession.'” Bousley, 523 U.S. at 622. Thus, even though Bousley's sentencing argument may have been “unacceptable to that particular court at that particular time, ” he could not establish cause for having failed to raise it, as his argument did not match any of the three Reed criteria for novelty.[6] That is not this case.

         The government correctly points out that prior to Johnson, Justice Scalia had on multiple occasions in dissent suggested that the Court hold the residual clause void for vagueness. Derby v. United States, 131 S.Ct. 2858, 2859-60 (2011) (Scalia, J., dissenting from denial of certiorari); Sykes v. United States, 564 U.S. 1, 28 (2011) (Scalia, J., dissenting), overruled by Johnson, 135 S.Ct. 2551 (2015); James v. United States, 550 U.S. 192, 230-31 (2007) (Scalia, J., dissenting), overruled by Johnson, 135 S.Ct. 2551 (2015). The government asserts that because Justice Scalia had explicitly raised the argument that the residual clause was unconstitutionally vague, the argument was not “novel.”

         This argument, however, overlooks the distinction between Reed and Bousley. In Reed, the Supreme Court plainly stated that a claim is “novel” when the Court “explicitly overrule[s] one of our precedents.” 468 U.S. at 17. In Bousley, on the other hand, the Supreme Court ruled that a claim is not “novel” when it has been raised in the lower courts but not yet decided by the Supreme Court.[7] To be sure, in the wake of Bousley, “the First Circuit has made it clear that the fact that there are First Circuit precedents that hold against the movant's argument does not suffice to establish futility.” United States v. Dean, 231 F.Supp.2d 382, 386 (D. Me. 2002) (emphasis added).[8] Yet the government does not and cannot point to any authority suggesting that Reed does not apply when the Supreme Court expressly overrules its own prior precedent. See Simpson v. Matesanz, 175 F.3d 200, 211-12 (1st Cir. 1999). Nor has the Court given any indication that Reed no longer remains good law. See Bousley, 523 U.S. at 622; cf. Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”). I conclude that under Reed, Casey's Johnson claim is a novel constitutional claim that applies retroactively, and he has therefore shown cause for his default.

         (ii) ...


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