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Yeaton v. United States

United States District Court, D. Maine

March 30, 2017

GEORGE YEATON, III, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

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

          John C. Nivison U.S. Magistrate Judge

         Following the First Circuit's grant of leave to file a second or successive motion, Petitioner George Yeaton, III, moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 38; Yeaton v. United States, No. 16-1667 (1st Cir. June 21, 2016).)[1] After a guilty plea, Petitioner was convicted of being a felon in possession of a firearm; the Court found Petitioner to be an armed career criminal, pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). The Court sentenced Petitioner to 400 months in prison. (Judgment, ECF No. 32 at 1-2.)

         In his pending section 2255 motion, Petitioner challenges his sentence based on Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015) (Johnson II).[2] He argues that his two prior Maine burglary convictions do not qualify as ACCA predicate offenses following Mathis v. United States, __ U.S. __, 136 S.Ct. 2243 (2016). (Reply, ECF No. 45.) He also argues that his two prior Maine robbery convictions and his prior Maine conviction for terrorizing with a dangerous weapon do not qualify as ACCA predicates under the “force clause, ” section 924(e)(2)(B)(i). (Id.)

         Following a review of Petitioner's motion, the Government's request for dismissal, and the record, I recommend that the Court deny Petitioner's section 2255 motion, but that the Court grant a certificate of appealability as set forth below.

         I. Factual Background and Procedural History

         Petitioner was indicted in December 2004 for being a felon in possession of a firearm, pursuant to 18 U.S.C. §§ 922(g)(1), 924(e). (Indictment, ECF No. 1.) The indictment alleged several prior Maine state felony convictions, including the following: a 1986 robbery conviction (No. CR-85-350, Me. Super. Ct., Oxford Cty., Jan. 15, 1986); a 1988 terrorizing conviction (No. CR-87-589, Me. Super. Ct., Ken. Cty, Jan. 20, 1988); a 1989 robbery conviction (No. CR-89-78, Me. Super. Ct., And. Cty., Feb. 9, 1989); a 1994 burglary conviction (No. CR-94-167, Me. Super. Ct., Oxf. Cty., Nov. 2, 1994); and a 1998 burglary conviction (No. CR-97-716, Me. Super. Ct., And. Cty., Apr. 6, 1998).[3](Id. at 1-2.)

         Petitioner pled guilty to the felon-in-possession charge in February 2005. (Minute Entry for Change of Plea Hearing, ECF No. 19.) At sentencing, the Court found the facts as set forth in the revised presentence investigation report, and the Court's sentencing guidelines calculations were as follows: The base offense level was 24, pursuant to USSG § 2K2.1(a)(2), because Petitioner had two prior felony violent crimes. (Sentencing Tr., ECF No. 36 at 90.) The revised presentence investigation report lists the robbery and burglary convictions identified above as the prior convictions on which the application of section 2K2.1(a)(2) was based.

         The Court concluded that the total offense level was 41, based on the following: four levels were added to the base offense level, pursuant to USSG § 2K2.1(b)(5), because Petitioner possessed the firearm in connection with another felony offense, namely, gross sexual assault; the offense level was raised to 40, pursuant to USSG §§ 2K2.1(c)(1)(A), 2X1.1, based on the application of the base offense level for the substantive offense of gross sexual assault; two levels were added, pursuant to USSG § 3D1.4, to determine the combined offense level; two levels were added, pursuant to USSG § 3A1.3, because the victims were physically restrained with duct tape or rope during the offense; and three levels were subtracted, pursuant to USSG § 3E1.1, for acceptance of responsibility. (Id. at 90-92.) The Court determined, pursuant to USSG § 4B1.4(b)(1), that because the total offense level of 41, which was applicable under Chapter Two of the Guidelines, was higher than the level that would apply under the armed career criminal provisions, the higher offense level of 41 applied. (Id. at 92.)

         The Court found Petitioner to be an armed career criminal, pursuant to 18 U.S.C. § 924(e), and the Court found a criminal history category of VI. (Id. at 92-93.) The Court concluded that a total offense level of 41, combined with a criminal history category of VI, resulted in a sentencing guidelines range of 360 months to life imprisonment. (Id. at 93.)

         The Court next considered all of the sentencing factors, pursuant to 18 U.S.C. § 3553(a). The Court focused particularly on the need for just punishment, deterrence, public protection, and rehabilitation. (Id. at 93.) The Court ordered the 400-month sentence to run concurrently with any undischarged term of imprisonment imposed in state court, pursuant to USSG § 5G1.3(b)(2). (Id. at 95-96.) The Court also imposed a term of five years of supervised release. (Id. at 96; Judgment at 3.)

         In 2007, the Court dismissed Petitioner's prior section 2255 motion as untimely. Yeaton v. United States, No. 2:06-cv-00138-GZS (Recommended Decision, ECF No. 21; Order Affirming, ECF No. 22.) In June 2016, the First Circuit granted Petitioner's application for leave to file a second or successive section 2255 motion, based on Johnson II. (Yeaton, No. 16-1667 (1st Cir. June 21, 2016).) The First Circuit stated: “The application is granted, but we express no opinion as to the ultimate merit of the claim.” (Id.) The First Circuit ordered that upon transfer of Petitioner's filings to this Court, the motion be deemed filed in this Court on May 19, 2016, which was the date on which Petitioner filed in the First Circuit. (Id.)

         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). Petitioner argues that the sentence is unconstitutional under Johnson II, that his ACCA status therefore must be re-established under current law, and that his prior burglary and robbery convictions do not qualify under current law as ACCA predicate violent felonies.[4]

         In Johnson II, the Supreme Court “struck down the ‘residual clause' of the [ACCA] as unconstitutionally vague.”[5] Pakala v. United States, 804 F.3d 139, 139 (1st Cir. 2015) (per curiam). The Supreme Court, however, explicitly limited its holding in Johnson II to exclude claims based on challenges to “the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” Johnson II, 135 S.Ct. at 2563. Thus, the enumerated crimes clause of section 924(e)(2)(B)(ii), as well as the force clause, section 924(e)(2)(B)(i), remain valid after Johnson II.

         Although the substance of Petitioner's argument is based on the enumerated crimes clause and the force clause, Petitioner argues preliminarily that his motion is timely under section 2255(f)(3), notwithstanding the Supreme Court's decision in Johnson II that the holding excludes claims that are based on the enumerated crimes and force clauses of section 924(e)(2)(B).[6] (Reply at 2-3, 18.) Petitioner argues essentially that after Johnson II, his prior crimes may not be considered ACCA predicates under the residual clause, and, therefore, the prior crimes must be re-established as ACCA predicates under either the enumerated crimes clause or the force clause, as interpreted under current law. (Reply at 2-3, 18.) He contends that, following Mathis, he lacks the requisite three ACCA predicate violent felonies.[7]

         A. The Maine burglary convictions

         Two of the prior convictions on which Petitioner's ACCA status was based were Maine burglary offenses, under 17-A M.R.S. § 401; Petitioner committed the burglaries in 1994 and 1997, according to the revised presentence investigation report.[8] Burglary is one of the offenses enumerated in section 924(e)(2)(B)(ii) of the ACCA as a violent felony.

         Petitioner argues that Mathis overrules the First Circuit's decision in United States v. Duquette, 778 F.3d 314 (1st Cir. 2015), in which the Court determined that the Maine burglary statute covers the offense of generic burglary, and that a Maine burglary conviction therefore qualifies as a violent felony under the enumerated crimes clause of the ACCA.[9] (Reply at 19-20.) Petitioner argues that, under Mathis, and contrary to Duquette, Maine burglary must be considered broader than generic burglary, in part because the definition of “structure, ” as set forth in 17-A M.R.S. § 2(24), includes vehicles and conveyances, similar to the Iowa law at issue in Mathis. (Reply at 6, 10-13.) Petitioner also argues that under Maine law, the locational element of burglary is not divisible. See Descamps v. United States, 133 S.Ct. 2276, 2284 (2013) (noting that a “so-called ‘divisible statute' . . . sets out one or more elements of the offense in the alternative”). (Reply at 8.)

         This Court has concluded that in this circuit, Duquette “‘establishes that Maine burglary convictions are “violent felonies” pursuant to ACCA's enumerated clause, '” even after Mathis. McCurdy v. United States, Nos. 1:06-cr-00080-JAW, 1:15-cv-00532-JAW, 2017 WL 74695, at *5, 2017 U.S. Dist. Lexis 1947, at *12-13 (D. Me. Jan. 6, 2017) (quoting Dimott v. United States, Nos. 2:06-cr-26-GZS, 2:16-cv-347-GZS, 2016 WL 6068114, at *3, 2016 U.S. Dist. Lexis 142354, at *8 (D. Me. Oct. 14, 2016); see Collamore v. United States, Nos. 2:10-cr-158-GZS, 2:16-cv-259-GZS, 2016 WL 6304668, at *2, 2016 U.S. Dist. Lexis 148757, at *6 (D. Me. Oct. 27, 2016); United States v. Casey, Nos. 2:11-cr-216-DBH, 2:16-cv-346-DBH, 2016 WL 6581178, 2016 U.S. Dist. Lexis 153085 (D. Me. Nov. 3, 2016)).[10]

         Petitioner asserts that his case is distinguishable from Dimott, and he requests that this Court “rule on, or address whether Maine burglary meets the generic definition of burglary, even if the court ultimately concludes it is bound by Duquette.” (Reply at 1 & n.2, 3 & n.3.) McCurdy, Dimott, Collamore, Casey are pending on appeal in the First Circuit as to the issues Petitioner raises here.[11] The issue regarding Petitioner's burglary convictions does not differ materially from the issue presented in McCurdy, Dimott, Collamore, and Casey. Accordingly, I can discern no reason the issue should be resolved differently in this case.

         B. The Maine robbery convictions

         Petitioner was convicted of Class A robbery, 17-A M.R.S. § 651, in 1986 and 1989.[12] (Response at 12; Attachments, ECF Nos. 44-1 at 5, 44-2 at 1.) Petitioner contends that Maine robbery does not qualify as an ACCA predicate under the force clause. (Reply at 23-25.)

         The Maine robbery statute is divisible, and therefore Shepard-approved documents may be presented at sentencing, when such documents are available, to enable the Court, using a modified categorical approach, to determine whether the “robbery conviction necessarily involved ‘force capable of causing physical pain or injury to another person.'” Jackson v. United States, Nos. 2:06-cr-94-GZS, 2:16-cv-187-GZS, 2016 WL 3167073, at *1-2, 2016 U.S. Dist. Lexis 73052, at*3-4. (D. Me. June 6, 2016) (quoting Johnson I, 559 U.S. at 140).[13] The Government represents that the charging instruments in Petitioner's case are not available, but it notes that because the offenses were charged as Class A crimes, the convictions necessarily were pursuant to 17-A M.R.S. § 651(1)(C), (D), or (E). (Response at 12-13.)

         In other cases in this District, the Court concluded that prior Maine robbery convictions under sections 651(1)(C) and (E) did not qualify as ACCA predicates under the force clause. See Jackson, 2016 WL 3167073, at *3, 2016 U.S. Dist. Lexis 73052, at *5-6 (addressing section 651(1)(C)); McCurdy, 2017 WL 74695, at *9, 2017 U.S. Dist. Lexis 1947, at *24-25 (addressing section 651(1)(E)).

         In Jackson, the Court held that a conviction under section 651(1)(C) did not qualify as an ACCA predicate because, under Maine case law, a robbery may be committed “with physical force that is less than the force capable of causing physical pain or injury to another person.” 2016 WL 3167073, at *2-3, 2016 U.S. Dist. Lexis 73052, at *6-7 (citing Johnson I, 135 S.Ct. at 2557, and discussing Raymond v. State, 467 A.2d 161 (Me. 1983), State v. Rembert, 658 A.2d 656 (Me. 1995)). The Court explained:

Examining the Shepard-approved documents in Jackson's robbery case, the Court cannot conclude that the physical force Jackson used upon his victim to extract the money, which was the focus of the theft element, was necessarily force capable of causing physical pain or injury to the victim. In short, the Court concludes that Jackson's 1998 Maine [r]obbery conviction is not an ACCA-qualifying conviction as a “violent felony” under the “force clause.”

2016 WL 3167073, at *3, 2016 U.S. Dist. Lexis 73052, at *6-7 (citing 18 U.S.C. § 924(e)(2)(B)(i)).[14]

         In McCurdy, the Court held that a conviction under section 651(1)(E) did not qualify as an ACCA predicate. McCurdy, 2017 WL 74695, at *9, 2017 U.S. Dist. Lexis 1947, at *24-25. The Court noted that the case law is unclear as to whether the degree of force required under Johnson I, 559 U.S. at 140, is met when the prior conviction is under section 651(1)(E). McCurdy, 2017 WL 74695, at *9, 2017 U.S. Dist. Lexis 1947, at *24. The Court reasoned that

by its terms, the Maine statute does not require that the robber actively use the weapon to commit the robbery in order to violate section 651(1)(E), only that the robber possess it “in the course of the robbery.” [17-A M.R.S. § 651(1)(E).] Without more, the possession of a firearm during a robbery does not therefore transform the robbery to ...

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