United States v. O'Shea

• Decision Date: 22 June 2017
• Docket Number: Cr. No. 02-10286-MLW.
• Citation: 256 F.Supp.3d 72
• Parties: UNITED STATES of America, v. Patrick O'SHEA, Defendant.
• Court: U.S. District Court — District of Massachusetts

256 F.Supp.3d 72

UNITED STATES of America,
v.
Patrick O'SHEA, Defendant.

Cr. No. 02-10286-MLW.

United States District Court, D. Massachusetts.

Signed June 22, 2017

Donald L. Cabell, James F. Lang, United States Attorney's Office MA, Boston, MA, for United States of America.

256 F.Supp.3d 76

MEMORANDUM AND ORDER

WOLF, D.J.

I. INTRODUCTION

On May 15, 2003, petitioner Patrick O'Shea was convicted of being a Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). The maximum penalty for that offense is ordinarily ten years. However, the court sentenced him to the fifteen-year mandatory minimum sentence required by the Armed Career Criminal Act (the "ACCA") based on his prior Massachusetts state convictions for unarmed robbery, breaking and entering, assault and battery with a dangerous weapon, and possession with intent to distribute narcotics.

On August 28, 2015, O'Shea filed a Motion to Correct his sentence under 28 U.S.C. § 2255, arguing that after the Supreme Court's decision in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015) (" Johnson II"), his prior convictions are no longer valid ACCA predicates and, therefore, that the ten-year maximum sentence under 18 U.S.C. § 924(a)(2), not the ACCA fifteen-year minimum under § 924(e), applies to him.

For the reasons described in this Memorandum, O'Shea's motion is being allowed. The government correctly concedes that O'Shea's convictions for breaking and entering are not now valid ACCA predicate offenses. See Gov.'s Opp. (Docket No. 246) at 2 n. 1. In addition, the court finds that unarmed robbery under Massachusetts law is also not a valid ACCA predicate offense. Accordingly, O'Shea does not have the three valid ACCA predicates necessary to make him eligible for a fifteen-year mandatory minimum sentence. Rather, the maximum permissible penalty is ten years. As O'Shea has been in custody for more than ten years, he is being resentenced to time-served.

II. BACKGROUND

On May 15, 2003, a jury found O'Shea guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). As explained earlier, there is ordinarily a maximum sentence of ten years imprisonment for that offense. However, under the ACCA, a defendant who is convicted under 18 U.S.C. § 922(g) and has three prior convictions for violent felonies or serious drug offenses is subject to a mandatory minimum sentence of fifteen years. See 18 U.S.C. § 924(e)(1). The court determined that O'Shea was an Armed Career Criminal based on the following five state convictions:

1. A 1991 conviction for unarmed robbery. See PSR at SI49.

2. A 1990 conviction for breaking and entering in the daytime under Mass. Gen. Laws Chapter 266, § 18. See PSR at ¶ 52.

3. A 1997 conviction for assault and battery with a dangerous weapon. See PSR at ¶ 57.

4. A 1997 conviction for breaking and entering at night under Mass. Gen. Laws Chapter 266, § 16. See PSR at ¶ 62.

5. A 2001 conviction for possession of heroin with intent to distribute. See PSR at ¶ 67.

See Jan. 16, 2004 Transcript at 49–51; PSR at 74. Therefore, on January 16, 2004, the court sentenced O'Shea to the mandatory fifteen-year minimum term of imprisonment required by the ACCA, 60 months Supervised Release, and a $100 special assessment.

His conviction and sentence were affirmed by the First Circuit. See

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United States v. O'Shea, 426 F.3d 475 (1st Cir. 2005). O'Shea has been in federal custody since May 15, 2003, and has now served more than fourteen years of his sentence.

On May 1, 2006, O'Shea filed a Motion to Vacate his Conviction and Sentence under 28 U.S.C. § 2255 alleging ineffective assistance of counsel. See Docket No. 175. On September 30, 2009, the court denied that motion. See Docket No. 176.

On June 26, 2015, the Supreme Court decided Johnson II, which, as explained below, invalidated the "residual clause" of the ACCA. See 135 S.Ct. at 2563. On August 28, 2015, O'Shea filed the instant petition, arguing that, in light of Johnson II, he no longer has at least three prior convictions that constitute violent felonies or serious drug offenses under the ACCA. He argues that the ten-year maximum sentence is, therefore, applicable to him, and that he should be released from custody because he has served more than ten years in prison. The government initially opposed the motion on the grounds that it was a second or successive petition for which O'Shea had not sought leave to file. However, on May 13, 2016, the First Circuit authorized O'Shea to pursue his petition. See Docket No. 232.

III. LEGAL STANDARDS

A. Review Under 28 U.S.C. § 2255

A prisoner in federal custody may collaterally attack his sentence under 28 U.S.C. § 2255. As the First Circuit has explained:

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 v. United States, 732 F.3d 1, 3 (1st Cir. 2013) (quoting 28 U.S.C. § 2255(a) ). In an action under § 2255, "[t]he burden of proof is on the petitioner." Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 2031, 195 L.Ed.2d 233 (2016).

Generally, a prisoner challenging his sentence under § 2255 may not rely on a rule of law that was announced after his conviction became final. See Butterworth v. United States, 775 F.3d 459, 463 (1st Cir.), cert. denied, ––– U.S. ––––, 135 S.Ct. 1517, 191 L.Ed.2d 450 (2015). However, when the Supreme Court announces a new substantive criminal rule or a "watershed rule[ ] of criminal procedure," that new rule applies retroactively on collateral review. Schriro v. Summerlin, 542 U.S. 348, 351–52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (internal quotation omitted). This includes collateral review under § 2255. See Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003).

B. The Armed Career Criminal Act

As explained earlier, under the ACCA, a defendant who is convicted under 18 U.S.C. § 922(g) and has three prior convictions for violent felonies or serious drug offenses is subject to a mandatory minimum sentence of fifteen years. See 18 U.S.C. § 924(e)(1). The ACCA defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that: (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another;" (2) "is burglary, arson, or extortion, [or] involves use of explosives;" or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id.§ 924(e)(2)(B). These clauses are referred to respectively as the force clause, the enumerated clause, and the residual

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clause. See, e.g., United States v. Holloway, 630 F.3d 252, 256 (1st Cir. 2011) ; United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).

In Johnson II, the Supreme Court invalidated the residual clause because it was unconstitutionally vague, overruling James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) and Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). As the Court explained:

Two features of the residual clause conspire to make it unconstitutionally vague. In the first place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime...At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.

135 S.Ct. at 2557. The Court found that its prior decisions "fail[ed] to craft a principled and objective standard out of the residual clause." Id. at 2558. Therefore, it held that "imposing an increased sentence under the residual clause...violates the Constitution's guarantee of due process." Id. at 2563. In Welch v. United States, the Court held that Johnson II announced a substantive rule that is retroactive on collateral review. See ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). Therefore, a prisoner who satisfies § 2255's procedural requirements, and who was sentenced as an Armed Career Criminal before Johnson II, is entitled to a reduction in his sentence if he does not have at least three convictions that are either (1) "serious drug offenses" or (2) satisfy the force clause or the enumerated clause of § 922(e).

IV. ANALYSIS

A. Procedural Default

The government argues that O'Shea's Johnson II claim is barred because he did not raise it at sentencing or on direct appeal. See United States v. O'Shea, 426 F.3d 475 (1st Cir. 2005).

"A significant bar on habeas corpus relief [under § 2255 ] is imposed when a prisoner did not raise claims at trial or on direct review." Owens v. United States, 483 F.3d 48, 56–57 (1st Cir. 2007). Specifically, "[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim...