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Simions v. United States

United States District Court, D. Maine

July 11, 2017

KAYA SIMIONS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

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

          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Kaya Simions moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 69.)[1] Petitioner contends he is entitled to be resentenced because, pursuant to Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015) (Johnson II), [2] 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.

         The 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.

         The 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.)

         Following 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.

         I. Factual Background and Procedural History

         In 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.[3](Sentencing Tr., ECF No. 39 at 4-13.) Petitioner did not appeal from the conviction or the sentence.

         Petitioner 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).)

         On June 14, 2016, Petitioner filed the pending section 2255 motion.[4] (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.[5]

         II. Discussion

         Petitioner's 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).[6] (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).

         The 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.)

         The 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).

         The First Circuit has not yet addressed the showing a petitioner is required to make under sections 2244(b)(2)(A) and 2244(b)(4).[7] The Government cites, among other cases, In re Moore, 830 F.3d 1268 (11th Cir. 2016), in support of its argument. (Response at 8.)

         In Moore, a panel of the ...


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