United States District Court, D. Maine
ORDER ON DEFENDANT'S 28 U.S.C. § 2255
Torresen, United States District Judge.
2014, Petitioner pleaded guilty to Hobbs Act robbery, 18
U.S.C. § 1951(a), and possession of a firearm by a
felon, 18 U.S.C. § 922(g)(1) and § 924(e)(1). At
his sentencing, I determined that Petitioner had been
convicted of at least three qualifying prior crimes of
violence and sentenced him to 180 months under the Armed
Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)(1). Judgment (ECF No. 44).
me now is Petitioner's Motion to Correct Sentence under
28 U.S.C. § 2255. (ECF No. 52.) For the reasons that
follow, I now DENY the motion.
December 2, 2013, Petitioner served as the getaway driver for
two individuals who committed an armed robbery of the Family
Dollar Store in Biddeford. Prosecution Version (ECF No. 32).
On December 18, 2014, Petitioner pleaded guilty to aiding and
abetting a Hobbs Act robbery and possessing a firearm as a
felon. (ECF No. 35). Because Petitioner had eight burglary
convictions under Maine law prior to the commission of his
federal offense, he fell under ACCA,  and he faced a guideline
sentencing range of 188-234 months and a fifteen-year
mandatory minimum sentence. Presentence Investigation Report
at ¶¶ 32, 35, 63. On March 30, 2015, I sentenced
Petitioner to 180 months on Counts One and Two to be served
concurrently. (ECF Nos. 44-45.)
did not file a direct appeal of his sentence, but on June 27,
2016, following the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson II”), holding ACCA's
“residual clause” unconstitutional, Petitioner
filed this habeas petition. Petitioner asserted that because
Johnson II struck down the residual clause and
because Maine's burglary statute was broader than generic
burglary, his burglaries were ineligible to serve as
predicates under ACCA's enumerated clause after
Mathis v. United States, 136 S.Ct. 2243 (2016).
Mathis held that an Iowa burglary statute
encompassing vehicle burglaries could not support an ACCA
sentence because it was broader than the generic definition
of burglary. 136 S.Ct. at 2251. Petitioner's primary
argument was that, because the Maine burglary statute allows
conviction for entry into structures adapted for overnight
accommodation, such as campers and boats, it was too broadly
defined to constitute generic burglary under ACCA's
response, the Government argued that Petitioner's prior
Maine burglary convictions were categorically burglaries
under ACCA's “enumerated” clause.
See Gov't Resp. in Opp'n to Def.'s Mot.
to Correct Sentence 5 (ECF No. 56) (citing United States
v. Duquette, 778 F.3d 314 (1st Cir. 2015),
cert. denied, 136 S.Ct. 262 (2015)). In
Duquette, the First Circuit concluded that Section
401(1) of Maine's burglary statute qualified as a
“violent felony” under ACCA, because “[b]y
its clear and unambiguous terms, the statute contains all of
the elements of ‘generic burglary' that the Supreme
Court set forth in Taylor.” Duquette,
778 F.3d at 318.
reply, Petitioner argued that Duquette was no longer
good law in light of Mathis. Pet.'s Reply 14-16
(ECF No. 57). Petitioner also added a new argument that
because Maine law allows an inference of burglary based on
“exclusive possession” of property recently
stolen in a burglary, 17-A M.R.S.A. § 361(A)(1), it is
broader than generic burglary. Pet.'s Reply 9-10. Because
Petitioner raised a new argument in his Reply, I allowed the
Government to file a Sur-reply to address the merits of
Petitioner's additional arguments. (ECF No. 59.)
the motion was fully briefed and under advisement, I stayed
decision at Petitioner's unopposed request, pending
decisions in United States v. Casey, 2016 WL 6581178
(D. Me. Nov. 3, 2016); Collamore v. United States,
2016 WL 6304668 (D. Me. Oct. 27, 2016); and Dimott v.
United States, 2016 WL 6068114 (D. Me. Oct. 14, 2016).
(ECF No. 63.) The First Circuit consolidated these cases and
affirmed the lower courts' rulings that each of these
petitions was procedurally barred. United States v.
Dimott, 881 F.3d 232, 236 (1st Cir. 2018). Each of the
petitioners asserted that he was sentenced under the residual
clause invalidated by Johnson II and that his
burglary conviction fell outside ACCA's enumerated clause
under Mathis. Id. The First Circuit held
that each petitioner bore the burden of proving that he was
in fact sentenced under the residual, rather than the
enumerated, clause. In two of the cases, the judge on
collateral review (who had also been the sentencing judge)
found that the petitioners had been sentenced pursuant to the
enumerated clause, making it easy for the First Circuit to
conclude that the petitioners were actually sentenced under
the enumerated clause. Id. at 236-37. In the third
case, the record was silent on whether the sentencing judge
had used the enumerated or residual clause in finding that
the underlying conviction qualified under ACCA. Id.
at 238. The First Circuit affirmed the denial of the third
petition on the ground that the petitioner had failed his
burden of production and proof under § 2255 to show that
he was sentenced under the now-void residual clause.
Id. at 240. The First Circuit concluded:
All three petitions are untimely because they raise
Mathis, not Johnson II claims, and
Mathis does not reset the one-year statute of
limitations under § 2255(f)(3). The petitioners have no
Johnson II claims because they have not shown that
their original ACCA sentences were based solely on the
Id. at 234.
December of 2018, the Supreme Court ruled that state burglary
statutes that cover vehicles designed or adapted for
overnight use fall within the generic burglary definition.
United States v. Stitt, 139 S.Ct. 399, 406-07
(2018). After Stitt was decided, Petitioner's
counsel filed a status report conceding that Stitt
went directly to the merits of Petitioner's primary
claim. Status Report (ECF No. 64).
a telephone conference on August 22, 2019, in which defense
counsel maintained that, despite Stitt, he still had
viable arguments that he wished to pursue. See (ECF
No. 66). Petitioner asked to file a supplemental brief, in
which he developed three arguments that Maine's burglary
statute is broader than generic burglary. See
Pet.'s Suppl. Mem. (ECF No. 67). First, he contends that
because Maine's statute defines a structure to include a
“place designed to provide protection for persons or
property against weather or intrusion” and could
include, for instance, a gazebo, it goes beyond generic
burglary. Pet.'s Suppl. Mem. 3. Second, he argues that
Maine's statute is broader than generic burglary because
it allows a jury to draw an inference of guilt if it finds a
burglary occurred and a defendant was in exclusive possession
of property taken in that burglary. Pet.'s Suppl. Mem.
3-4. Finally, Petitioner claims that, because the Maine
statute includes attempted burglary, it is broader than
generic burglary. Pet.'s Suppl. Mem. 4-5.
Government, after noting that Duquette remains
binding Circuit precedent, filed a responsive supplemental
brief addressing the merits of these newly developed
arguments. Gov't's Suppl. Mem. (ECF No. 68). At no
time has the Government raised the issue of whether