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Hall v. United States

United States District Court, D. Maine

December 6, 2017

JEFFREY S. HALL, 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 Jeffrey S. Hall moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Amended Motion, ECF No. 55.) Following a guilty plea, Petitioner was convicted in 2003 on two counts of armed bank robbery and one count of using a firearm in relation to the crime. The Court sentenced Petitioner to a total of 378 months in prison. (Amended Judgment, ECF No. 27.) The First Circuit affirmed the judgment on appeal. (United States v. Hall, No. 03-1199 (1st Cir. Dec. 16, 2003).)

         Petitioner asserts he is entitled to relief under Johnson v. United States, ___U.S. ___, 135 S.Ct. 2551 (2015), because when he was sentenced, the sentencing guidelines contained a provision identical to the “residual clause” held unconstitutional in Johnson, and, at the time, the guidelines were mandatory. See United States v. Booker, 543 U.S. 220, 245 (2005) (holding that the sentencing guidelines, excised of provisions the Court held unconstitutional, are “effectively advisory”); Hardy v. United States, 871 F.3d 85, 86 (1st Cir. 2017) (granting leave to pursue, in a second or successive section 2255 motion, the issue whether Johnson “invalidates the residual clause of the pre-Booker career offender guideline”); Moore v. United States, 871 F.3d 72 (1st Cir. 2017).

         Following a review of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         Petitioner was indicted on three counts for armed bank robbery, aiding and abetting, 18 U.S.C. §§ 2, 2113(a), (d) (Count 1); for using and carrying a firearm in relation to a violent crime, aiding and abetting, 18 U.S.C. §§ 2, 924(c)(1)(A)(ii) (Count 2); and for armed bank robbery, 18 U.S.C. § 2113(a) (Count 3).

         The record establishes that Petitioner's sentence was enhanced, pursuant to USSG § 4B1.1, because the Court concluded he had at least two prior qualifying offenses.[1] At the time of his sentencing, Petitioner's criminal history included several Maine state court convictions, including two for criminal threatening with a dangerous weapon, two for robbery, and two for burglary.

         Petitioner appealed from the sentence on the basis that the Court erred when it denied credit for acceptance of responsibility; the First Circuit consolidated Petitioner's and his co-defendant's appeals for briefing and argument, and it affirmed the judgments. Hall, No. 03-1199 (1st Cir. Dec. 16, 2003).[2]

         Petitioner filed a pro se section 2255 motion on May 31, 2016, to request relief under Johnson.[3] (Motion, ECF No. 51.) The Court granted Petitioner's request for the appointment of counsel. (Order, ECF No. 53.) Petitioner filed a pro se amended motion, and Petitioner's counsel filed a reply. (Amended Motion, ECF No. 55; Reply, ECF No. 77.)

         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). The burden is on the section 2255 petitioner to establish that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).

         Petitioner's claim is based on Johnson, in which the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague.[4] Johnson, 135 S.Ct. at 2557. In Beckles v. United States, __ U.S. __, 137 S.Ct. 886 (2017), the Supreme Court held that Johnson does not apply to career offender sentences imposed after the sentencing guidelines became advisory, i.e., after Booker:

At the time of petitioner's sentencing, the advisory Sentencing Guidelines included a residual clause defining a ‘crime of violence' as an offense that ‘involves conduct that presents a serious potential risk of physical injury to another.' This Court held in [Johnson] that the identically worded residual clause in the [ACCA] was unconstitutionally vague. Petitioner contends that the Guidelines' residual clause is also void for vagueness. Because we hold that the ...

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