United States District Court, D. Maine
ORDER ON MOTION TO RECONSIDER ORDER AFFIRMING
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
federal prisoner moves the Court to reconsider its order
denying his motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 in light of a new
decision from the United States Supreme Court,
Rosales-Mireles v. United States, 585 U.S.___, 138
S.Ct. 1897 (2018). Because the new decision does not apply to
the prisoner's circumstances, the Court denies his motion
23 and May 24, 2011, Movant, Domingós Nóbrega,
was tried and convicted of being a felon in possession of a
firearm, pursuant to 18 U.S.C. §§ 922(g)(1),
924(a)(2). Min. Entry (ECF Nos. 91, 93). On July 13,
2012, the Court sentenced Mr. Nóbrega to a period of
incarceration of 120 months. J. (ECF No. 228). Mr.
Nóbrega appealed, and the First Circuit affirmed the
conviction and sentence on May 20, 2014. J. of the United
States Court of Appeals for the First Circuit (ECF No.
April 13, 2015, Mr. Nóbrega filed a motion to vacate,
set aside, or correct his sentence. Mot. Under 28. U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (ECF No. 287). On May 31 and June
6, 2016, Mr. Nóbrega filed a supplemental motion
challenging on vagueness grounds the validity of the
then-operative sentencing guideline provisions the Court used
to calculate his offense level, U.S.S.G. § 2K2.1(a)(2)
and § 4B1.2(a)(2), in light of a new case, Johnson
v. United States, 576 U.S.___, 137 S.Ct. 886 (2015)
(Johnson II), which the Supreme Court made effective
retroactively. Mot. for Notice of Applicability of New
Retroactive Case, U.S. v. Johnson (ECF No. 335);
Mot. to Vacate Sentence Enhancement 2K2.1(a)(2) with
Priors, by Johnson v. U.S. (2015) (ECF No. 336).
29, 2016, the Government moved to stay resolution of Mr.
Nóbrega's habeas motion pending the outcome of
Beckles v. United States, 580 U.S.___, 137 S.Ct. 886
(2017), a case then before the Supreme Court regarding the
impact of Johnson II. Mot. to Stay (ECF No.
343). On January 30, 2017, the Magistrate Judge issued his
Recommended Decision on the issues in Mr.
Nóbrega's initial habeas motion. Recommended
Decision on 28 U.S.C. 2255 Mot. (ECF No. 369). The
Magistrate Judge withheld recommendation on the Johnson
II question pending Beckles. Order Granting
Request for Stay (ECF No. 368).
Nóbrega filed his objections to the Recommended
Decision on February 14 and February 24, 2017. Mot.
Pursuant 28 U.S.C. 636(b)(1)(B), Objs. To Magistrate
Judge's Recommended Decision on 28 U.S.C. § 2255
Mot. (ECF No. 373); Mem. in Response to 2255
Recommendation (ECF No. 376). Mr. Nóbrega also
objected to the Magistrate Judge's decision to withhold
recommendation on Johnson II. Mot. to Obj. to
Gov't. Mot. to Stay, Doc 347 & 358 Prejudice Towards
Pet'r, Release from a Illegal Sentence (ECF No.
370). He submitted a series of additional filings on that
issue, making further arguments and citing additional cases.
Mot. of Notice to Apply. U.S.S.C. Dimaya v. Lynch
(ECF No. 380); Letter (ECF No. 383); Applying
Johnson II 803 F.3d 110, 1120 (9th Cir 2015) to
Pet'r's Case as Merit, to Aid in his Resentencing
Mots. (ECF No. 389).
7, 2018, the Court affirmed the Magistrate Judge's
recommended decision and denied Mr. Nóbrega's
petition and remaining motions. Order Affirming
Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF
No. 397). The Court explained that the recent decision from
the United States Supreme Court in Beckles was
unfavorable to Mr. Nóbrega and directly controlled the
Johnson II issue in his case. Id. at 11-13.
28, 2018, Mr. Nóbrega moved the Court to reconsider
its decision denying his habeas petition on the Johnson
II issue in light of another new decision from the
United States Supreme Court, Rosales-Mireles v. United
States, 138 S.Ct. 1897. Mot. to Reconsider Doc
360-397, Petitioner's Johnson, Johnson II, Dimaya, 4B1.2
& 2K2.1(a)(2) Claim Only Under Rosales-Mireles (ECF
26, 2015, the United States Supreme Court decided Johnson
II. 135 S.Ct. 2551. The Armed Career Criminal Act of
1984 (ACCA) provides for enhanced mandatory minimum penalties
for prohibited persons possessing firearms after three
previous convictions for a “serious drug offense”
or a “violent felony.” 18 U.S.C. §
924(e)(1). The term “violent felony” is defined
in part by the “residual clause” of the ACCA,
which refers to a crime that “otherwise involves
conduct that presents a serious potential risk of physical
injury to another[.]” Id. §
924(e)(2)(B)(ii). In Johnson II, the Supreme Court
held that the residual clause of the ACCA was
unconstitutionally vague. 135 S.Ct. at 2557.
Nóbrega was not sentenced under the ACCA, but the
Probation Office and the Court set his guideline base offense
level pursuant to U.S.S.G. § 2K2.1(a)(2), which refers
to two prior felony convictions for a “crime of
violence.” The version of the guidelines in effect at
Mr. Nóbrega's sentencing in 2012 defined,
“crime of violence, ” with a “force
clause” and its own “residual clause” that
matched the ACCA's word-for-word. See 2011
U.S.S.G. Manual § 4B1.2(a)(2); U.S.S.G. Amend. 798 (Aug.
1, 2016). In Beckles, however, the Supreme Court
held that, unlike statutes such as the ACCA, the sentencing
guidelines “are not subject to vagueness challenges
under the Due Process Clause” because they only inform
the judge's broad discretion within a permissible
statutory range. 137 S.Ct. at 890, 894. As the Court
explained in its order denying Mr. Nobrega's petition,
Beckles foreclosed Mr. Nóbrega's argument
analogizing his case to Johnson II.
does not change that result. Last month, the Supreme Court
clarified that, “in the ordinary case, ” even
when not raised at sentencing and first raised on appeal, a
plain error or miscalculation of a guideline sentencing range
that affects a defendant's substantial rights will call
for a court of appeals to vacate the sentence for
recalculation. Rosales-Mireles, 138 S.Ct. at 1903,
1911. The case is of no assistance to Mr. Nóbrega for
at least two reasons.
Rosales-Mireles interpreted and applied Federal Rule
of Criminal Procedure 52(b), which governs courts'
discretion during direct appeals, Fed. R. Crim. P. 52(b), but
it is unlikely that the same rule would apply on collateral
review, where the scope of review is more limited. See
Bousley v. United States, 523 U.S. 614, 621 (1998)
(“Habeas review is an extraordinary remedy and will not
be allowed to do service for an appeal”) (internal
quotation marks omitted); United States v. Frady,
456 U.S. 152, 164 (1982) (“Because it was intended for
use on direct appeal, however, the ‘plain error'
standard is out of place when ...