United States District Court, D. Maine
ORDER ON SUCCESSIVE § 2255 PETITION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
compliance with an order from the Court of Appeals for the
First Circuit that allowed the petitioner to proceed with his
successive § 2255 petition in light of Johnson v.
United States, 135 S.Ct. 2551 (2015), the Court follows
district precedent and rejects his claim that his prior
convictions under Maine's burglary statute are not
violent felonies for purposes of the Armed Career Criminal
Act (ACCA). However, the Court accepts his claim that under
Johnson, his prior convictions under Maine's
robbery statute are no longer proper ACCA predicates. With
this ruling, the Court concludes that the provisions of the
ACCA should not be applied to the Defendant, and the Court
orders his resentencing.
Verdict, Sentence, and Direct Appeals
December 31, 2008, a federal jury convicted Mark McCurdy of
being a felon in possession of a firearm. Jury
Verdict (ECF No. 148). In anticipation of sentencing,
the Probation Office listed the following predicate
convictions for Armed Career Criminal Act (ACCA) status:
(1) Two counts of burglary on April 14, 1984 in Washington
County Superior Court for the state of Maine, Docket No.
(2) Two counts of robbery on June 1, 1984 in Penobscot County
Superior Court for the state of Maine, Docket No. CR-83-247.
Presentence Investigation Report ¶¶ 31-32. Had Mr.
McCurdy not been convicted of other crimes, his criminal
history category would have been IV due to his ACCA status
under United States Sentencing Guideline § 4B1.4(c)(3);
however, due to his other convictions, his criminal history
category was calculated at V. Id. ¶¶ 38-39
(citing U.S.S.G. § 4B1.4(c)(1)). Because of his ACCA
status, his offense level was fixed at 33. Id.
¶ 24. As Mr. McCurdy went to trial, he was not accorded
acceptance of responsibility, and his Guideline sentence
range was 210 to 262 months. Id. ¶ 59. On July
20, 2009, the Court sentenced Mr. McCurdy to 210 months of
incarceration- at the low end of the guideline range-three
years of supervised release, and a $100 special assessment.
Minute Entry (ECF No. 191); Tr. of
Proceedings, Sentencing Proceedings (ECF No.
208); J. (ECF No. 195).
31, 2010, Mr. McCurdy appealed to the Court of Appeals for
the First Circuit. Notice of Appeal (ECF No. 197).
On November 16, 2010, the First Circuit affirmed, United
States v. McCurdy, No. 09-2101 (1st Cir. Nov. 16, 2010),
and on March 21, 2011, the Supreme Court denied Mr.
McCurdy's petition for a writ of certiorari. McCurdy
v. United States, 562 U.S. 1301 (2011) (mem.).
First and Second Habeas Petitions
August 4, 2011, Mr. McCurdy filed his first § 2255
petition. Mot. Under § 2255 to Vacate, Set Aside, or
Correct Sent. by a Person in Fed. Custody (ECF No. 240).
In that petition, Mr. McCurdy raised a number of issues,
including allegations of ineffective assistance of counsel
and prosecutorial misconduct. On September 27, 2013, the
Court denied the petition. Order on Def.'s First and
Second Mots. for Leave to File Suppl. Pleadings and on
Def.'s Mot. Under 28 U.S.C. § 2255 to
Vacate, Set Aside or Correct Sent. (ECF No. 305). Mr.
McCurdy appealed that decision to the First Circuit Court of
Appeals. Notice of Appeal (ECF No. 307). On June 4,
2014, the First Circuit denied his request for a certificate
of appealability and terminated his appeal. J. (ECF
6, 2015, Mr. McCurdy filed his second § 2255 petition,
alleging that the Government misstated facts in its brief to
the Court of Appeals and that the Government and the Court
blocked Mr. McCurdy's repeated attempts to secure the
source of the misinformation. Mot. to Vacate, Set Aside,
or Correct a Sent. by a Person in Fed. Custody (28
U.S.C. § 2255) (ECF No. 351). On July 28, 2015, the
Magistrate Judge issued a recommended decision in which he
recommended that this Court dismiss without prejudice Mr.
McCurdy's July 6, 2015 motion, dismiss or deny all other
pending motions, and deny a certificate of appealability.
Recommended Decision on 28 U.S.C. § 2255
Mot., Mot. for Relief from J., Mot. for Findings of
Fact, Mot. for Counsel and Disc. Mots. (ECF No.
352). Mr. McCurdy objected to the recommended decision on
August 28, 2015. Pet'r's Objs. to
Magistrate's Recommended Decision on 28
U.S.C. § 2255 Mot. (ECF No. 356). On March 24, 2016,
this Court affirmed the recommended decision, dismissed
without prejudice Mr.
July 6, 2015 motion, denied and dismissed the remaining
pending motions, and denied any certificate of appealability.
Order Affirming the Recommended Decision of the
Magistrate Judge (ECF No. 366). On April 28, 2016, Mr.
McCurdy appealed this Court's March 24, 2016 order.
Notice of Appeal (ECF No.
On October 11, 2016, the First Circuit Court of Appeals
denied Mr. McCurdy's request for a certificate of
appealability, his motion for appointment of counsel, and his
motion for leave to file a successive motion. J.
(ECF No. 393). On December 5, 2016, the Court of Appeals'
mandate was filed in this Court. Mandate (ECF No.
Application to File Successive § 2255 Motion and
Successive § 2255 Motion to Vacate
November 25, 2015, Mr. McCurdy filed an application for leave
to file a successive motion to vacate his sentence on the
ground that his prior Maine burglary conviction no longer
qualified as a violent felony under either the enumerated or
residual clauses of the ACCA in light of Johnson v.
United States, 135 S.Ct. 2551 (2015) (Johnson
II). App. for Leave to File a Second or Successive
Mot. to Vacate, Set Aside, or Correct Sent. 28
U.S.C. § 2255 by a Prisoner in Fed. Custody
(ECF No. 378) (Leave App.). On June 21, 2016, the
Court of Appeals for the First Circuit granted Mr.
McCurdy's application seeking leave to file a second or
successive § 2255 motion on the ground that Mr. McCurdy
had made a prima facie showing that his challenge, pursuant
to Johnson II, to his armed-career-criminal
designation legitimately relied upon a “new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” J. at 1 (quoting 28 U.S.C.
§ 2255(h)(2)) (ECF No. 376). The First Circuit
transferred Mr. McCurdy's leave application materials to
this Court with instructions to file them as a § 2255
27, 2016, the Magistrate Judge appointed David R. Beneman,
the Federal Defender for the District of Maine, to represent
Mr. McCurdy in his motion, Order Appointing Counsel
(ECF No. 382), and ordered the Government to answer Mr.
McCurdy's motion. Order to Answer (ECF No. 383).
The Government answered Mr. McCurdy's motion on September
7, 2016. Mot. for Summ. Dismissal of Mot. to Vacate, Set
Aside, or Correct Sent. Pursuant to 28 U.S.C. §
2255 (ECF NO. 391) (Gov't's Opp'n). On
October 3, 2016, Mr. McCurdy filed a reply. Def.'s
Reply to Gov't's Opp'n to Mot. to Correct Sent.
Under 28 U.S.C. § 2255 (ECF No. 392)
THE POSITIONS OF THE PARTIES
Mark McCurdy's § 2255 Motion
November 25, 2015 leave application-which the Court construes
as a § 2255 motion in accordance with the First
Circuit's instructions-Mr. McCurdy contests the validity
of the ACCA enhancement following Johnson II. A
memorandum accompanying his leave application explains:
The Supreme Court decision in [Johnson II] rendered
the State of Maine offense of Class C Burglary (17-A M.R.S.A.
§ 401(1)(A)) not a violent felony for purpose of a
sentence enhancement under either the enumerated clause or
the residual clause of the [ACCA] because it lacked an
essential element required for generic burglary.
Leave App. at 8.
The Government's Response
September 7, 2016 opposition, the Government first argues
that because Mr. McCurdy's criminal record included two
Maine convictions for a “generic burglary, ” he
properly qualified for ACCA status under United States v.
Duquette, 778 F.3d 314, 317-19 (1st Cir. 2015).
Gov't's Opp'n at 6. The Government notes
that in Taylor v. United States, 495 U.S. 575
(1990), the Supreme Court defined “generic
burglary” for purposes of the ACCA to be “any
crime, regardless of its exact definition or label, having
the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit
a crime.” Id. at 8 (quoting Taylor,
495 U.S. at 599). The Government turns to the First
Circuit's 2015 Duquette decision in which the
First Circuit wrote that the Maine burglary statute, 17-A
M.R.S. § 401(1), “contains all the elements of
‘generic burglary'” that the Supreme Court
identified in Taylor. Id. at 9 (quoting
Duquette, 778 F.3d at 318). Even though the
Sentencing Guideline defined “crime of violence”
to include only burglary of a dwelling, the Government states
that the First Circuit concluded that “the term
‘burglary' as used in the ACCA [is] broad enough to
include both residential and non- residential
offenses.” Id. (quoting Duquette, 778
F.3d at 318 (quoting United States v. Giggey, 551
F.3d 27, 35-36 (1st Cir. 2008) (en banc)). The Government
maintains that Duquette is still good law and that
this Court is bound to apply it until it is overruled by the
First Circuit Court of Appeals. Id. at 10.
Government distinguishes the United States Supreme Court case
of Mathis v. United States, 136 S.Ct. 2243, 2248-49
(2016), from Mr. McCurdy's case. Id. at 11. The
Government observes that in Mathis, the Government
had conceded the Iowa burglary statute covered a broader
range of conduct than “generic burglary” does.
Id. (citing Mathis. 136 S.Ct. at 2248-49).
The Iowa burglary statute reached “any building,
structure, [or] land, water, or air vehicle.”
Id. (quoting Mathis, at 2248-49 (quoting
Iowa Code § 702.12 (2013)) (emphasis in original). The
Government notes that the Maine statute defines burglary as
entering or surreptitiously remaining in a
“structure” knowing the person is not licensed or
privileged to do so, “with the intent to commit a crime
therein.” Id. (quoting 17-A M.R.S. §
401). Referring to Maine's statutory definitions of
“structure” and “dwelling place, ”
the Government ...