United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
action, Petitioner Kaya Simions moves, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside or correct his sentence.
(Motion, ECF No. 69.) Petitioner contends he is entitled to be
resentenced because, pursuant to Johnson v. United
States, __ U.S. __, 135 S.Ct. 2551 (2015) (Johnson
II),  which held that the “residual
clause” of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(ii), was unconstitutional,
Petitioner no longer has three prior ACCA violent felonies.
First Circuit granted Petitioner's request to file a
successive section 2255 motion reasoning that
“Petitioner has made a prima facie showing that his
challenge, pursuant to [Johnson II], to his
armed-career-criminal designation legitimately relies on a
‘new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.'” (Simions v. United
States, No. 16-2021 (1st Cir. Sept. 16, 2016) (quoting
28 U.S.C. § 2255(h)(2)).) The First Circuit
“express[ed] no opinion whatsoever as to the ultimate
merits of petitioner's claim.” Id.
Government requests summary dismissal. (Response, ECF No.
89.) The Government argues that, pursuant to 28 U.S.C. §
2244(b), Petitioner may not pursue a Johnson claim
because he cannot demonstrate that his enhanced sentence was
based solely on the now-unconstitutional residual clause of
the ACCA. (Id. at 7-8.) In other words, the
Government argues that because the sentencing court did not
state that the predicate violent felonies qualified under the
residual clause, Petitioner has not met his burden under
section 2244(b). (Id.) The Government, however,
concedes that if the Court decides Petitioner does not have
such a burden, Petitioner is entitled to habeas relief.
(Id. at 9-10.)
a review of Petitioner's motion and the Government's
request for dismissal, I recommend the Court deny the
Government's request and grant Petitioner's request
for habeas relief.
Factual Background and Procedural History
2010, following a guilty plea, Petitioner was convicted of
possession of a firearm by a felon, and he was sentenced as
an armed career criminal to a prison term of 180 months, to
be followed by a term of five years of supervised release.
(Judgment, ECF No. 21 at 1-3.) At sentencing,
Petitioner's status as an armed career criminal under the
18 U.S.C. § 924(e)(2)(B) was based on the following five
prior Massachusetts offenses: assault and battery of a police
officer; assault and battery of a public employee; breaking
and entering during the day; and two offenses of breaking and
entering at night.(Sentencing Tr., ECF No. 39 at 4-13.)
Petitioner did not appeal from the conviction or the
filed his first section 2255 motion in 2011. (Motion, ECF No.
33.) In the motion, Petitioner alleged ineffective assistance
of counsel. (Id. at 4, 5.) The Court denied the
motion. Simions v. United States, 858 F.Supp.2d 124
(D. Me. 2012). (Recommended Decision, ECF No. 52; Order
Affirming, ECF No. 56.) The First Circuit subsequently denied
Petitioner's application for a certificate of
appealability. (Simions v. United States, No.
12-1530 (1st Cir. Nov. 21, 2012).)
14, 2016, Petitioner filed the pending section 2255
motion. (Motion, ECF No. 69.) Because the motion
was a second or successive such motion, over which this Court
lacked jurisdiction in the absence of First Circuit
authorization, the Court transferred the motion to the First
Circuit, pursuant to 28 U.S.C. § 1631 and First Circuit
Rule 22.1(e). See Trenkler v. United States, 536
F.3d 85, 96 (1st Cir. 2008). (Recommended Decision, ECF No.
70; Order Affirming, ECF No. 72.) As explained above, the
First Circuit granted Petitioner's request to file a
successive section 2255 motion.
sentence was enhanced, pursuant to 18 U.S.C. §
924(a)(2), (e)(1), because the Court found he had at least
three prior convictions that qualified as “violent
felonies” under section 924(e)(2)(B). (Sentencing Tr.
at 13.) Without the enhancement, Petitioner would have been
subject to a maximum of ten years in prison, but with three
prior violent felonies, he was subject to a minimum of
fifteen years in prison. 18 U.S.C. § 924(a)(2), (e)(1).
Government's response to the pending motion is limited;
it concedes that, following the First Circuit's decision
in United States v. Faust, 853 F.3d 39 (1st Cir.
2017), it cannot establish that Petitioner's prior
assault and battery on a police officer or his prior assault
and battery on a public employee qualifies as a predicate
violent felony under the force clause. (Response at 9.) The
Government also declines to defend the Massachusetts breaking
and entering convictions as predicate violent felonies under
the enumerated offenses clause, following the Supreme
Court's decision in Mathis v. United States, __
U.S. __, 136 S.Ct. 2243 (2016). (Id. at 9-10.)
Rather, the Government's sole argument is that Petitioner
is not entitled to relief because he has a burden under 28
U.S.C. §2244(b) to demonstrate that the record supports
a claim based on Johnson II, and he cannot meet that
burden because he cannot establish that the Court relied on
the residual clause to conclude that any of the prior crimes
qualified as an ACCA predicate. (Id. at 8 9.) The
Government concedes that if the Court determines Petitioner
has met the requirements of section 2244(b), Petitioner is
entitled to be resentenced. (Id. at 10.)
Government's argument regarding Petitioner's burden
is evidently based on the language of section 2244(b), which
provides in relevant part: “A claim presented in a
second or successive habeas corpus application under section
2254 that was not presented in a prior application shall be
dismissed unless . . . the applicant shows that the
claim relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C.
§ 2244(b)(2)(A) (emphasis added). Similarly, section
2244(b)(4) provides: “A district court shall dismiss
any claim presented in a second or successive application
that the court of appeals has authorized to be filed
unless the applicant shows that the claim satisfies
the requirements of this section.” 28 U.S.C. §
2244(b)(4) (emphasis added).
First Circuit has not yet addressed the showing a petitioner
is required to make under sections 2244(b)(2)(A) and
2244(b)(4). The Government cites, among other cases,
In re Moore, 830 F.3d 1268 (11th Cir. 2016), in
support of its argument. (Response at 8.)
Moore, a panel of the ...