Damon v. United States

• Decision Date: 03 October 2013
• Docket Number: No. 13–1098.,13–1098.
• Citation: 732 F.3d 1
• Parties: James DAMON, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

732 F.3d 1

James DAMON, Petitioner, Appellant,

v.UNITED STATES of America, Respondent, Appellee.

No. 13–1098.

United States Court of Appeals, First Circuit.

Oct. 3, 2013.

Virginia G. Villa, Assistant Federal Defender on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney, and Thomas E. Delahanty, United States Attorney, on brief for appellee.

Before HOWARD, STAHL and THOMPSON, Circuit Judges.

HOWARD, Circuit Judge.

After James Damon pleaded guilty to possession of a firearm by a felon, the district court determined that he had two prior felony convictions for a crime of violenceand a controlled substance offense and accordingly sentenced him under a higher Guideline range. Two years later, in the wake of the Supreme Court's decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), we held in United States v. Holloway, 630 F.3d 252 (1st Cir.2011), that a Massachusetts conviction for assault and battery—one of Damon's two prior convictions on which the district court relied—is not categorically a crime of violence. Damon unsuccessfully moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We hold that Damon's claim is procedurally defaulted and therefore affirm the district court's denial of his petition.

I.

On December 1, 2008, Damon pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). Following Damon's guilty plea, the Probation Office prepared a Presentence Report (PSR) that recommended a Guideline base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) on the basis of Damon's prior Massachusetts convictions for possession of marijuana with intent to distribute in 2005 and for assault and battery in 2006.¹

In his objections to the PSR, Damon did not challenge the designation of his assault-and-battery conviction as a crime of violence, nor did he object to it at his sentencing on May 12, 2009. At sentencing, following the PSR, the district court began with a base offense level of 24, added two levels for the number of firearms involved in the offense, and reduced by three levels for acceptance of responsibility to arrive at a total offense level of 23 and a corresponding Guideline range of 70 to 87 months' imprisonment. The court sentenced Damon to 70 months' imprisonment and three years' supervised release. Damon unsuccessfully appealed his sentence to this court, but did not mount any challenge to the district court's reliance on the Massachusetts assault-and-battery conviction as a crime of violence. See United States v. Damon, 595 F.3d 395 (1st Cir.2010).

Damon timely filed this section 2255 petition on February 14, 2011, not long after we, relying on the Supreme Court's decision in Johnson, held in Holloway that a Massachusetts conviction for assault and battery is not categorically a violent felony.² Damon accordingly contended in his petition that his base offense level should have been 20, his total offense level 19, and his resulting Guideline range 46 to 57 months.

Agreeing with the magistrate judge's recommended decision, the district court denied Damon's petition on several grounds, including that Johnson and Holloway did not apply retroactively to cases on collateral review, that Damon's claim was procedurally defaulted, and that Damon's claim of Guideline error did not in any event allege a “complete miscarriage of justice” cognizable under section 2255. The district court certified the following issues for appeal under 28 U.S.C. § 2253(c):

(1) whether Mr. Damon's claims are procedurally defaulted; (2) whether Johnson applies retroactively; (3) whether a guideline miscalculation that results in a sentence within the proper statutory range satisfies the complete miscarriage of justice standard; (4) whether a claim of actual innocence may be based on a legal as opposed [to] factual error; and (5) whether in the circumstances of this case a seventy-month sentence represents a complete miscarriage of justice.

This appeal followed.

II.

The government no longer argues that Johnson does not apply retroactively. Nevertheless, this concession does not change the outcome. Damon's acknowledged failure to object to the crime-of-violence determination either at sentencing or on direct appeal dooms his petition.

Section 2255 contemplates four potential bases on which a federal prisoner may obtain relief: (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 such 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). Damon does not allege a constitutional error or lack of jurisdiction, nor did his 70–month Guideline sentence exceed the ten-year statutory maximum under 18 U.S.C. § 924(a)(2). Accordingly, he challenges his sentence under the portions of section 2255 granting relief from sentences “in violation of the ... laws of the United States” or “otherwise subject to collateral attack.”

For non-constitutional, non-jurisdictional claims raised in a section 2255 petition, the Supreme Court has stated that “the appropriate inquiry [is] whether the claimed error of law [is] ‘a fundamental defect which inherently results in a complete miscarriage of justice,’ and whether ‘(i)t ... present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). In Knight v. United States, 37 F.3d 769, 773 (1st Cir.1994), applying Hill's miscarriage-of-justice standard, we cited several cases from other circuits concluding that “errors in the application of the sentencing guidelines ... are not cognizable under § 2255.” But the petitioner's claim in Knight was also barred by procedural default, and we explicitly declined to “hold that an error in the application of the sentencing guidelines could never constitute a ‘complete miscarriage of justice’ ” cognizable under section 2255. Id. at 773–74.

In recent years, a split has emerged between the Seventh, Eighth, and Eleventh Circuits on this longstanding question. In Sun Bear v. United States, 644 F.3d 700 (8th Cir.2011) (en banc), the Eighth Circuit held that erroneous designation as a career offender cannot be challenged under section 2255 even by a petitioner who raised the issue on direct appeal and avoided procedural default. The Seventh Circuit held the contrary in Narvaez v. United States, 674 F.3d 621 (7th Cir.2011), but later, in Hawkins v. United States, 706 F.3d 820 (7th Cir.2013), opinion supplemented on denial of reh'g,724 F.3d 915 (7th Cir.2013), limited the holding of Narvaez to defendants sentencedbefore United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made the Guidelines advisory. (Damon, like the petitioner in Hawkins, was sentenced under the post-Booker advisory Guidelines regime.) Most recently, after the submission of briefs in this case, the Eleventh Circuit disagreed with Hawkins and held in Spencer v. United States, No. 10–10676, 727 F.3d 1076, 2013 WL 4106367 (11th Cir. Aug. 15, 2013), that erroneous career offender designation is cognizable under section 2255 even in the case of a defendant sentenced after Booker.

We need not here resolve the interesting question that we left open in Knight and on which other circuits are divided.³ Instead, we hold that Damon's Guideline error claim, like that of the petitioner in Knight, should have been brought on direct appeal and is thus procedurally defaulted.

Under the longstanding “procedural default” rule, “[a] nonconstitutional claim that could have been, but was not, raised on appeal, may not be asserted by collateral attack under § 2255 absent exceptional circumstances.” Knight, 37 F.3d at 772 (citations omitted); see also United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (“[A] collateral challenge may not do service for an appeal.” (citations omitted)). In such cases, “[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’ ” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citations omitted). To be sure, the latter exception may not even apply to claims of non-constitutional error in the imposition of a non-capital sentence, an issue that we also do not address today, since it is clear in any event that Damon's petition does not qualify under either exception.⁴

Damon first suggests that he had “cause” for not raising the crime-of-violence challenge at sentencing and on direct appeal because then-binding precedent in this circuit treated a Massachusetts assault-and-batteryconviction as a categorical crime of violence. See United States v. Mangos, 134 F.3d 460, 464 (1st Cir.1998), abrogated by Holloway, 630 F.3d at 254–55.

The Supreme Court considered and rejected a comparable argument in Bousley, where the petitioner asserted that he had cause for his procedural default because “the legal basis for his claim was not reasonably available to counsel” at the time he pleaded guilty. 523 U.S. at 622, 118 S.Ct. 1604 (quotation marks omitted). Citing its earlier decision in Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), the Supreme Court reiterated that in order to constitute cause for a procedural default, a claim must be “so novel that its legal basis is not reasonably available to counsel,” and found the petitioner's claim lacking in novelty. Id. (quotation marks omitted). Moreover, adverse precedent alone did not render the petitioner's claim “una...