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McCurdy v. United States

United States District Court, D. Maine

January 6, 2017

MARK MCCURDY, Petitioner,



         In 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.

         I. Background [1]

         A. Verdict, Sentence, and Direct Appeals

         On 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. CR-83-173; and
(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).

         On July 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.).

         B. First and Second Habeas Petitions

         On 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 No. 314).

         On July 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.

         McCurdy's 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.

         369). 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. 394).

         C. Application to File Successive § 2255 Motion and Successive § 2255 Motion to Vacate Sentence

         On 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 motion. Id.[2]

         On June 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) (Def.'s Reply).


         A. Mark McCurdy's § 2255 Motion

         In his 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.

         B. The Government's Response

         In its 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.

         The 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 ...

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