Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ellis v. United States

United States District Court, D. Maine

March 10, 2017

RAYMOND L. ELLIS, JR., Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON MOTION TO AMEND [1]

          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Raymond L. Ellis, Jr., moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 59.) Following a guilty plea, Petitioner was convicted of theft of firearms from a federal firearms licensee, conspiracy to commit theft, and possession of firearms as a convicted felon. (Judgment, ECF No. 29 at 1; Information, ECF No. 5.) The Court sentenced Petitioner to a total of 120 months in prison. (Judgment at 2.) In 2011, the First Circuit upheld the sentence on appeal. (United States v. Ellis, No. 10-1052 (1st Cir. Mar. 17, 2011).)

         In November 2016, I determined that the section 2255 motion was untimely and thus recommended the Court deny relief, dismiss the motion, and deny a certificate of appealability. (Recommended Decision, ECF No. 72 at 2, 7.) Petitioner subsequently filed a motion to amend to add a claim under Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). (Motion to Amend, ECF No. 73.) In the motion to amend, Petitioner asserts that he is entitled to relief because the Court determined the sentencing guidelines range based in part on a finding that two prior Maine burglaries qualified as prior crimes of violence, pursuant to USSG § 2K2.1, and that under Johnson, the burglaries do not qualify as a crime of violence. (Motion to Amend at 1-2; Reply, ECF No. 75 at 1; Sentencing Tr., ECF No. 52 at 5.) The Government objects to the motion to amend. (Response, ECF No. 74.)

         After review of Petitioner's motion to amend, I recommend the Court deny the motion to amend as futile. I further recommend the Court deny a certificate of appealability.

         Discussion

         Petitioner's motion to amend is governed by Fed.R.Civ.P. 15. See 28 U.S.C. § 2242 (habeas petitions “may be amended or supplemented as provided in the rules of procedure applicable to civil actions”); Rules Governing Section 2255 Proceedings, Rule 12 (providing that the Federal Rules of Civil Procedure apply, to the extent they are not inconsistent with statutory provisions or the Rules Governing Section 2255 Proceedings). Because the motion to amend was not filed within 21 days of Petitioner's section 2255 motion, and because the Government objects to the motion to amend, leave of court is required. See Fed. R. Civ. P. 15(a)(2). The Court may deny a motion to amend if the amendment would be futile, i.e., if “the complaint, as amended, would fail to state a claim upon which relief could be granted.” D'Agostino v. ev3, Inc., 845 F.3d 1, 6 (1st Cir. 2016).

         Petitioner's motion to amend seeks leave to assert a claim under Johnson. 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.”[2] Pakala v. United States, 804 F.3d 139, 139 (1st Cir. 2015) (per curiam). In Welch v. United States, --- U.S. ---, 136 S.Ct. 1257, 1268 (2016), the Supreme Court held that “Johnson announced a substantive rule that has retroactive effect in cases on collateral review.” Petitioner maintains he is entitled to relief under Johnson because two Maine burglary convictions used by the Court to enhance his sentence pursuant to USSG § 2K2.1(a)(1) are no longer violent crimes.[3]

         Significantly, in Johnson, the Supreme Court explicitly limited its holding to exclude claims based on “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. Thus, in Dimott v. United States, Nos. 2:06-cr-26-GZS, 2:16-cv-347-GZS, 2016 WL 6068114, at *2, 2016 U.S. Dist. Lexis 142354, at *5 (D. Me. Oct. 14, 2016), this Court held that because the petitioner's multiple prior Maine burglary convictions resulted in an enhanced sentence under the enumerated offense clause of section 924(e)(2)(B)(ii), rather than the residual clause of the statute, Johnson and Welch do not provide grounds for relief. If Johnson applied to sentences enhanced under the guidelines and was not limited to ACCA sentences, under this Court's reasoning in Dimott, Petitioner nonetheless would not be entitled to relief under Johnson, because the sentencing range was determined under the enumerated offenses clause, not the residual clause, of the guidelines.[4]

         Johnson, however, does not apply to sentences enhanced under the guidelines. In Beckles v. United States, No. 15-8544, --- U.S. ---, 2017 WL 855781, 2017 U.S. Lexis 1572 (Mar. 6, 2017), the Supreme Court recently held that “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause . . . .” 2017 WL 855781, at *3, 2017 U.S. Lexis 1572, at *6. The Supreme Court thus rejected the petitioner's argument that the guidelines residual clause, like the statutory residual clause at issue in Johnson, is unconstitutionally vague. Id. Because Petitioner's sentence was enhanced under the guidelines and was not an ACCA sentence, Beckles precludes Petitioner's claim.

         Petitioner also cites Mathis v. United States, __ U.S. __, 136 S.Ct. 2243 (2016), in support of his claim.[5] Mathis is not applicable to Petitioner's section 2255 motion because Mathis “has not been recognized as a case that announced a new substantive rule that is retroactively applicable to cases on collateral review, ” and it therefore “cannot be read as triggering a new one-year period for habeas relief under 28 U.S.C. § 2255(f)(3).” Dimott, 2016 WL 6068114, at *3, 2016 U.S. Dist. Lexis 142354, at *6-7; see Mathis, 136 S.Ct. at 2251-52 (noting that the Court's prior precedent, including Descamps v. United States, __ U.S. __, 133 S.Ct. 2276, 2283 (2013), indicated the rule was not new); United States v. Taylor, __ F. App'x __, 2016 WL 7093905, at *4, 2016 U.S. App. Lexis 21701, at *12 (10th Cir. Dec. 6, 2016) (concluding that “Mathis did not announce a new rule, ” and citing, inter alia, Dimott, 2016 WL 6068114, at *3, 2016 U.S. Dist. Lexis 142354, at *6-7). Because Mathis is not retroactively applicable, Petitioner could not recover on a claim based on Mathis.[6]

         Conclusion

         Based on the foregoing analysis, I recommend the Court deny Petitioner's request for leave to amend his section 2255 motion. I further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).

---------


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.