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Whindleton v. United States

United States District Court, D. Maine

October 11, 2018



          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Jermaine Whindleton moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 137.) Petitioner also filed a motion to supplement his section 2255 motion. (Motion to Supplement, ECF No. 154.)

         Following a jury trial, Petitioner was convicted of possession of a firearm by a felon, and the Court sentenced Petitioner to the statutory minimum of 180 months in prison under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). (Jury Verdict, ECF No. 99; Judgment, ECF No. 123 at 1-2.) On appeal, Petitioner argued that two of his prior offenses-a 2006 New York drug conviction (criminal sale of a controlled substance, N.Y. Penal Law § 220.39(1)), and a 2009 Massachusetts conviction of assault with a dangerous weapon (ADW) (Mass. Gen. Laws ch. 265, § 15B(b))-were not valid ACCA predicate offenses. United States v. Whindleton, 797 F.3d 105, 107 (1st Cir. 2015), cert. denied, 137 S.Ct. 179 (2016). The First Circuit noted that at sentencing, Petitioner conceded a 2009 Massachusetts drug conviction qualified as a third ACCA predicate offense. Whindleton, 797 F.3d at 107-08. The First Circuit affirmed the sentence. Id. at 107.

         In Petitioner's section 2255 motion, as previously amended (ECF Nos. 144, 144-1), he contends, based on Mathis v. United States, ___U.S.___, 136 S.Ct. 2243 (2016), that neither the New York drug conviction nor the Massachusetts ADW conviction qualifies as an ACCA predicate. (Amended Motion, ECF No. 144-1 at 4.) Petitioner also contends his 2006 New York drug conviction did not qualify as an ACCA predicate at the time of his 2014 federal sentencing, due to a 2009 state law that retroactively reduced the maximum term to less than the ten years required under section 924(e)(2)(A)(ii), and he includes a related claim of ineffective assistance. (Id. at 5-7.)

         In Petitioner's pending motion to supplement, he requests the Court include as part of his amended section 2255 motion a claim that his 2009 Massachusetts drug conviction does not qualify as an ACCA predicate offense. (Motion to Supplement, ECF No. 154 at 1.)

         Following a review of Petitioner's motion, the Government's request for dismissal, and the record, I grant Petitioner's motion to supplement, and I recommend the Court grant the Government's request to dismiss Petitioner's section 2255 motion as amended.

         I. Discussion

         A. Legal Standards

         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 by a preponderance of the evidence 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).

         A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “Accordingly, a defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence.” Berthoff, 308 F.3d at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010).

         An allegation of ineffective assistance of counsel can excuse a procedural default if the petitioner demonstrates that counsel's representation “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). The petitioner must also demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A district court reviewing a claim of ineffective assistance of counsel need not address both prongs of the test because a failure to meet either prong will undermine the claim. Id. at 697.

         If a petitioner's “claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail.” Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002).

         “Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing ‘is not necessary when a [§] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.'” Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (quotation marks omitted)).

         B. Claims and Analysis

         In his previously amended motion, Petitioner challenges the two ACCA predicate offenses at issue on appeal.[1] (Amended Motion, ECF No. 144-1 at 4.) Petitioner timely filed the section 2255 claims that are based on the predicate offenses at issue on appeal.[2]

         In his motion to supplement (Motion to Supplement, ECF No. 154), Petitioner challenges the third ACCA predicate offense, a 2009 Massachusetts offense of possession with intent to distribute a Class B drug. (Motion to Supplement at 1.) The motion is granted and Petitioner's contention regarding the 2009 Massachusetts offense is addressed below.[3]

         1. Massachusetts assault with a dangerous weapon

         The First Circuit rejected on appeal Petitioner's argument that Johnson v. United States, 559 U.S. 133 (2010) (holding that for an offense to qualify as an ACCA predicate under the force clause, the statute of conviction must require violent force), overruled United States v. Am, 564 F.3d 25, 33 ¶ n.9 (1st Cir. 2009) (holding that Massachusetts ADW satisfies the ACCA's force clause). Whindleton, 797 F.3d at 112-16. The First Circuit noted that Petitioner had not urged the Court to revisit and reject its conclusion in Am that Massachusetts ADW required the state to show the defendant acted intentionally. Whindleton, 797 F.3d at 113 n.9, 116 n.12.

         Petitioner contends that after Mathis, his prior Massachusetts ADW offense no longer qualifies as a “violent felony” under the ACCA force clause, because the crime can be committed with a mental state of recklessness, i.e., without the requisite intent, and because the “dangerous weapon” element does not require the jury to find violent force was used.[4] (Amended Motion, ECF No. 144-1 at 32.) Petitioner includes a related claim of ineffective assistance of appellate counsel regarding the mens rea issue. (Id. at 6, 47-49.)

         Petitioner's argument fails because the Supreme Court denied certiorari in Petitioner's case on October 3, 2016, after its June 23, 2016, decision in Mathis. Because the Supreme Court did not remand Petitioner's case for reconsideration following Mathis, it is reasonable to conclude the Supreme Court would not interpret Mathis to call into doubt the First Circuit's rulings in Petitioner's appeal. See Sears v. Atchison, Topeka & Santa Fe Ry., Co., 749 F.2d 1451, 1453-54 (10th Cir. 1984) (declining to reverse a judgment on the basis of later Supreme Court decisions, noting “two of the cited cases were decided before the Supreme Court denied certiorari and the other two were decided before the Court's term ended two months later, ” and concluding “[u]nder these circumstances we believe that ...

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