United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge.
action, Petitioner Joseph Scott Reeves moves, pursuant to 28
U.S.C. § 2255, to vacate, set aside or correct his
sentence. (Amended Motion, ECF No. 55.) In 2006, following a
guilty plea, Petitioner was convicted of possession of
firearms as a felon, Hobbs Act robbery, and use of firearms
during the commission of a federal crime of violence; he was
sentenced to a total prison term of 262 months. (Judgment,
ECF No. 29 at 1-2.) Petitioner did not appeal from the
conviction or the sentence.
asserts a claim pursuant to Johnson v. United
States, __U.S.__, 135 S.Ct. 2551 (2015). (Amended Motion
at 1.) Following a review of Petitioner's motion, the
Government's request for dismissal, and the record, I
recommend the Court grant the Government's request to
dismiss Petitioner's section 2255 motion.
Factual Background and Procedural History
was convicted of possession of firearms as a felon, 18 U.S.C.
§ 922(g)(1) (Count 1); Hobbs Act robbery, 18 U.S.C.
§ 1951(a) (Count 2); and use of firearms during the
commission of a federal crime of violence, 18 U.S.C. §
924(c) (Count 3). (Judgment at 1.)
Court concluded Petitioner was a career offender under the
sentencing guidelines, USSG § 4B1.1(a). (Presentence
Order, ECF No. 26 at 1-2 n.2, and at 7; Sentencing Tr., ECF
No. 52 at 8.) The Court sentenced Petitioner to prison terms
of 120 months on Count 1; 178 months on Count 2, to run
concurrently; and 84 months on Count 3, to run consecutively
to Count 2, for a total prison sentence of 262 months.
(Judgment at 2.) The prison terms were to be followed by
supervised release terms of three years on Counts 1 and 2,
and five years on Count 3, with all supervised release terms
to run concurrently. (Judgment at 3.)
states he placed his pro se motion in the prison
mailing system on January 25, 2016. (Motion, ECF No. 43 at
7.) Petitioner included in the pro se motion a claim
under Johnson. (Memorandum in Support, ECF No. 43-1
at 1.) Counsel was appointed to represent Petitioner with
respect to the Johnson claim. (Order, ECF No. 46.)
Petitioner, represented by counsel, filed an amended motion.
(Amended Motion at 1.) In the amended motion, Petitioner
withdrew all claims except the Johnson claim.
(Id. at 3.)
Johnson, the statute at issue was the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (ACCA), which imposes a
15-year mandatory minimum prison term when a defendant is
convicted of a violation of 18 U.S.C. § 922(g) and has
three previous convictions, committed on separate occasions,
“for a violent felony or a serious drug offense, or
both.” 135 S.Ct. at 2555-57. Section 924(e)(2)(B)
defines the term “violent felony” and provides:
[T]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, . .
(i) has as an element the use, attempted
use, or threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
924(e)(2)(B)(i) is known as the “force” clause or
the “elements” clause; the provision of section
924(e)(2)(B)(ii) that references burglary, arson, extortion,
and the use of explosives is known as the “enumerated
offenses” clause; the remainder of section
924(e)(2)(B)(ii), i.e., the provision “or
otherwise involves conduct that presents a serious potential
risk of physical injury to another, ” is known as the
“residual” clause. United States v.
Starks, 861 F.3d 306, 314 (1st Cir. 2017); United
States v. Edwards, 857 F.3d 420, 422-23 & n.2 (1st
Johnson, the Court held the residual clause
unconstitutionally vague. 135 S.Ct. at 2555-57. The Court
left intact the force clause and the enumerated offenses
clause of section 924(e)(2)(B): “Today's decision
does not call into question application of the Act to the
four enumerated offenses, or the ...