United States District Court, D. Maine
ORDER ON MOTION TO SUPPLEMENT/ RECOMMENDED DECISION
ON 28 U.S.C. § 2255 MOTION
C. Nivison U.S. Magistrate Judge.
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.)
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.
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.)
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.)
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.
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).
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).
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).
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.
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).
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)).
Claims and Analysis
previously amended motion, Petitioner challenges the two ACCA
predicate offenses at issue on appeal. (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
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
Massachusetts assault with a dangerous weapon
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.
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. (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.)
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