United States District Court, D. Maine
ORDER ON MOTION TO SUPPLEMENT/ RECOMMENDED DECISION
ON 28 U.S.C. § 2255 MOTION
JOHN
C. NIVISON, U.S. MAGISTRATE JUDGE
In this
action, Petitioner Xavier Watson moves, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside or correct his sentence.
(Motion, ECF No. 276.) Petitioner also filed a motion to
supplement.[1] (Motion to Supplement, ECF No. 279.)
In
2017, following a guilty plea, Petitioner was convicted of
Hobbs Act robbery and aiding and abetting the brandishing of
a firearm in furtherance of a crime of violence. (Judgment,
ECF No. 177 at 1.) Pursuant to an amended judgment,
Petitioner was sentenced to a total prison term of 115
months. (Amended Judgment, ECF No. 264 at 2.) Petitioner did
not appeal from the conviction or the sentence.
Petitioner
contends, pursuant to Johnson v. United States, ___
U.S. ___, 135 S.Ct. 2551 (2015), and Sessions v.
Dimaya, ___ U.S. ___, 138 S.Ct. 1204 (2018), that his
conviction should be vacated; he also asserts a related claim
of ineffective assistance. (Motion at 2-3.)
I grant
the motion to supplement. Following a review of
Petitioner's section 2255 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.
I.
Factual Background and Procedural History
In May
2017, Petitioner was convicted of Hobbs Act robbery, 18
U.S.C. § 1951(a) (Count 2); and aiding and abetting the
brandishing of a firearm in furtherance of a crime of
violence, 18 U.S.C. § 924(c) (Count 3); the Court
sentenced Petitioner to prison terms of 37 months on Count 2
and to 84 months on Count 3, to be served consecutively, for
a total term of 121 months.[2] (Judgment at 1-2.)
In
February 2018, the Court amended the sentence on Count 3 from
84 months to 78 months (still to be served consecutively);
after the amendment, the total prison term was 115 months.
(Id.; Amended Judgment at 1-2.) Petitioner did not
appeal from the conviction or the sentence.
Petitioner
filed his motion on May 14, 2018, which was within the
one-year limitation period under section 2255(f)(1). (Motion
at 1.)
II.
Discussion
In
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, . .
. that-
(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 ...