United States v. Duval

• Decision Date: 17 July 2013
• Docket Number: Criminal No. 03–10292–PBS.
• Parties: UNITED STATES of America, Respondent, v. Timothy J. DUVAL, Petitioner.
• Court: U.S. District Court — District of Massachusetts

957 F.Supp.2d 100

UNITED STATES of America, Respondent,

v.Timothy J. DUVAL, Petitioner.

Criminal No. 03–10292–PBS.

United States District Court,

D. Massachusetts.

July 17, 2013.

John A. Capin, United States Attorney's Office, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

SARIS, Chief Judge.

I. INTRODUCTION

Petitioner, Timothy J. Duval, brings this motion pursuant to 28 U.S.C. § 2255(a) claiming that his criminal sentence as an armed career criminal was excessive and in violation of due process. Specifically, he claims that after an intervening change in law from the Supreme Court and the First Circuit, one of the predicate offenses used to apply an enhanced sentence was not a “violent felony” under the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924. This motion raises many complex and novel issues of habeas law. After hearing, Petitioner's request for relief (Docket No. 185) is ALLOWED.

II. PROCEDURAL HISTORY

On October 27, 2004, a single count superseding indictment was returned by a federal grand jury charging Timothy J. Duval and Michael R. Doucette as felons-in-possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A jury trial presided over by the Honorable Reginald C. Lindsay commenced on February 7, 2005. On February 17, 2005, the jury returned verdicts of guilty as to each defendant and the case was continued for sentencing. At Duval's sentencing, the probation office recommended a sentencing enhancement based upon application of the Armed Career Criminal Act (“ACCA”). Under the ACCA:

[A] person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years.

18 U.S.C. § 924(e)(1) (emphasis added).

Counsel objected to the Pre–Sentence Report (“PSR”) recommendation, stating that the “ACCA sentencing enhancement was not applicable because the defendant lacks the three prior felony or serious drug convictions based on the information contained in the PSR.” Prior to the felon-in-possession conviction, Duval had been convicted of three other felonies. These included two burglaries and an assault under Maine state law, 17–A M.R.S. § 207(1).

Defendant filed a Memorandum in Aid of Sentencing (Docket No. 144), which disputed that “the assault conviction [under § 207] is a violent felony.” Under the ACCA:

[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 physical injury to another ...

18 U.S.C. § 924(e)(2)(B).¹ With respect to the assault conviction, Duval conceded that he had received a sentence in excess of one year for the underlying assault. However, Duval pointed out that while Maine does not classify crimes as misdemeanors or felonies, a violation of § 207 constitutes a Class D crime and is punishable by imprisonment for less than one year. 17–A M.R.S. § 1252(2)(D). The increased sentence was due to 17–A M.R.S. § 1252(4–A), which provides for an enhancement of the applicable “sentencing class” where the state has shown that a defendant has two or more prior convictions for similar offenses. Despite his enhanced sentence, Duval argued that the underlying assault was not punishable for a term exceeding one year and as such did not constitute a predicate offense under the ACCA.

The trial court received a copy of the charging document and the statute describing the assault. At sentencing, the court concluded that because Defendant pleaded guilty to an offense punishable for a period of incarceration greater than a year, the assault charge was, therefore, a violent felony and should be counted as one of three predicate offenses under the ACCA. Accordingly, on June 2, 2005, Duval was sentenced to a mandatory minimum term of 180 months imprisonment, followed by a five year term of supervised release.

On June 7, 2005, Duval filed a timely Notice of Appeal. In addition to his argument that the underlying assault was not punishable by more than a year of imprisonment, Duval argued that the Maine assault offense should not have been categorized as “violent.” Under 17–A M.R.S. § 207(1), “[a] person is guilty of assault if the person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person.” Based on the charging documents, Duval argued that the underlying assault could have been based upon “reckless” conduct or upon “offensive contact” neither of which would establish a predicate “violent felony” for ACCA enhancement purposes. The First Circuit recognized that the case law to determine whether assault is a violent or non-violent felony was “in some disarray.” United States v. Duval, 496 F.3d 64, 85 n. 7 (1st Cir.2007). However, given prior circuit precedent the court was bound to hold “that even ‘offensive contact’ constitutes a violent felony under Maine's assault and battery statute.” Id. at 85 (citing United States v. Nason, 269 F.3d 10, 21 (1st Cir.2001)). Consequently, the First Circuit affirmed Duval's conviction and sentence on August 7, 2007. Id., cert. denied,553 U.S. 1067, 128 S.Ct. 2499, 171 L.Ed.2d 790 (2008).

On September 27, 2011, Duval filed the present petition pursuant to 28 U.S.C. § 2255, arguing that the mandatory fifteen year sentence he received should be vacated in light of the First Circuit's decision in United States v. Holloway, 630 F.3d 252 (1st Cir.2011). On October 13, 2011 Petitioner requested counsel to represent him on this habeas petition (Docket No. 188). The court granted the Petitioner's request and appointed counsel.

III. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a defendant may seek post-conviction relief from his sentence in four instances: if the sentence “(1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack.” David v. United States, 134 F.3d 470, 474 (1st Cir.1998) (citing Hill v. United States, 368 U.S. 424, 426–27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). “Section 2255 is not a surrogate for a direct appeal.” David, 134 F.3d at 474. Unless the claim alleges a lack of jurisdiction or constitutional error, the sentence must result in “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (citing Hill, 368 U.S. at 428, 82 S.Ct. 468). The miscarriage of justice claim may have its source in the Constitution or in the laws of the United States. Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Where a conviction and punishment are for an act that the law does not make criminal, “such a circumstance inherently results in a complete miscarriage of justice and present[s] exceptional circumstances that justify collateral relief under § 2255.” Id. at 347, 94 S.Ct. 2298 (quotations omitted). A viable habeas claim exists under § 2255 where a conviction is rendered invalid by an “intervening change in the law.” Id. at 342, 94 S.Ct. 2298.

IV. DISCUSSION

A. Determination of “Violent Felony” Under the ACCA

Petitioner argues that his 180–month sentence was excessive and unconstitutional because there was insufficient evidence to demonstrate that his prior assault conviction was a “violent felony.” If the assault is not a “violent felony” then he does not possess the required three predicate offenses to qualify for the ACCA sentencing enhancement. The Government argues that, even though Maine's assault statute contains both violent and non-violent variants, the Presentence Report's (“PSR”) description of the offense, to which the Petitioner did not object, establishes that Duval's assault was a “violent felony.”

When determining whether a defendant's prior offense qualifies as a violent felony under the ACCA, the sentencing court must take a categorical approach. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this approach, the court considers whether the offense of conviction, as legally defined, qualifies as an ACCA violent felony. Id. “In implementing this [categorical] approach, the first step is to identify the offense of conviction.” United States v. Giggey, 589 F.3d 38, 41 (1st Cir.2009). In doing so, the trial court may look “only to the fact of conviction and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602, 110 S.Ct. 2143. Thus, “[i]n determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).

This can prove challenging when a defendant, such as Duval, is convicted under a statute that covers multiple offenses. Giggey, 589 F.3d at 41. In such a case, a court may look to a restricted set of sources, such as an indictment, a plea agreement or colloquy, or jury instructions, to ascertain which of the multiple offenses served as the offense of conviction. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Giggey, 589 F.3d at 41. The list of documents allowed by Shepard is not exhaustive. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254 (allowing “some comparable judicial record of [the admitted elements of the generic offense]”). This process is known as the “modified categorical approach,” recently reaffirmed by the Supreme Court in cases ...