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Fitzpatrick v. United States

United States District Court, D. Maine

February 16, 2017

MICHAEL FITZPATRICK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         Petitioner Michael Fitzpatrick filed a motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 25.) In 2003, following a guilty plea, Petitioner was convicted of being a felon in possession of firearms, pursuant to 18 U.S.C. §§ 922(g)(1), 924(e); and possession of stolen firearms, pursuant to 18 U.S.C. § 922(j). (Judgment, ECF No. 22 at 1.) The Court sentenced Petitioner to a total of 180 months in prison. (Judgment at 2.) Petitioner did not appeal from the conviction or the sentence.

         Petitioner argued in his section 2255 motion that he is entitled to relief based on Johnson v. United States, ___ U.S.___, 135 S.Ct. 2551 (2015). (Motion at 1.) Counsel was appointed. (Order, ECF No. 26.) In its response, the Government argues that Petitioner is not entitled to relief under Johnson, because Petitioner's sentence was enhanced, under a provision of section 924(e) that was not found unconstitutional in Johnson, based on at least three previous burglary convictions. (Response, ECF No. 31 at 10-12.) Petitioner filed a reply in which he conceded the enhancement of his sentence was not based on the residual clause of the Armed Career Criminal Act addressed in Johnson. (Reply, ECF No. 32.)

         Following a review of Petitioner's motion and the Government's request for dismissal, I recommend that the Court grant the Government's request, and dismiss Petitioner's motion, but grant a certificate of appealability, in accordance with recent district precedent.

         I. Factual Background and Procedural History

         Petitioner was indicted in July 2003, on two counts: being a felon in possession of firearms, pursuant to 18 U.S.C. §§ 922(g)(1), 924(e); and possession of stolen firearms, pursuant to 18 U.S.C. § 922(j). (Indictment, ECF No. 1.) In October 2003, he pled guilty to both counts: (Minute Entry on Plea Hearing, ECF No 17.) The Court sentenced Petitioner to a prison term of 180 months on the felon-in-possession count, and to 120 months on the count for possession of stolen firearms, to be served concurrently, followed by concurrent terms of five years of supervised release on the felon-in-possession count, and three years on the count for possession of stolen firearms. (Judgment at 2-3.)

         Petitioner dated his section 2255 motion December 30, 2015, and it was filed on January 4, 2016.[1] (Motion at 1.) The pending motion is Petitioner's first section 2255 motion in this case.[2]

         II. Discussion

         A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         A section 2255 motion must be filed timely under one of several subsections of section 2255(f).[3] It appears Petitioner placed the section 2255 motion in the prison mailing system within one year of the Supreme Court's June 26, 2015, decision in Johnson, as required under section 2255(f)(3). (Motion at 1.) See Rule 3(d), Rules Governing Section 2255 Proceedings. The Government concedes that if Petitioner has a Johnson claim, the claim was timely filed. (Response at 1 n.2.)

         In Johnson, the Supreme Court “struck down the ‘residual clause' of the [Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA)] as unconstitutionally vague.”[4] Pakala v. United States, 804 F.3d 139, 139 (1st Cir. 2015) (per curiam). The Supreme Court announced in Johnson that its holding “does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” 135 S.Ct. at 2563. Burglary is one of the offenses enumerated in section 924(e)(2)(B)(ii) of the ACCA. Because, based on his prior burglary convictions, Petitioner was subject to an enhanced sentence under the “enumerated clause” of section 924(e)(2)(B)(ii), rather than the residual clause, Petitioner is not entitled to relief under Johnson. See United States v. Duquette, 778 F.3d 314, 318 (1st Cir. 2015).

         Based on arguments made by some petitioners in other section 2255 motions in this district, Petitioner's motion also arguably raises an additional issue of whether Maine's burglary statute constitutes “generic burglary, ” under Taylor v. United States, 495 U.S. 575 (1990). In Taylor, the Supreme Court held:

[A]n offense constitutes “burglary” for purposes of a § 924(e) sentence enhancement if either its statutory definition substantially corresponds to “generic” burglary, or the charging paper and jury instructions actually required the jury to find all the ...

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