Dimott v. United States , 881 F.3d 232 ( 2018 )

United States Court of Appeals
For the First Circuit
Nos. 16-2289, 16-2319, 16-2368
RICHARD DIMOTT; WAYNE N. COLLAMORE; CHARLES H. CASEY, JR.;
Petitioners, Appellants,
v.
UNITED STATES,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge,
Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
David Beneman, Federal Public Defender, for appellants.
Julia M. Lipez, Assistant United States Attorney, with whom
Richard W. Murphy, Acting United States Attorney, was on brief,
for appellee.
February 2, 2018
LYNCH, Circuit Judge. This consolidated appeal arises
from the denials of three federal post-conviction relief petitions
filed under 28 U.S.C. § 2255. Richard Dimott, Wayne N. Collamore,
and Charles H. Casey, Jr., each pled guilty to a federal firearm
offense and had a history of Maine state burglary convictions. On
collateral review, all three allege that they no longer qualify
for a sentence enhancement under the Armed Career Criminal Act
("ACCA") because the ACCA's residual clause was invalidated by
Johnson v. United States, 135 S. Ct. 2251 (2015) ("Johnson II").
Each petitioner filed his federal habeas petition
outside of the one-year statute of limitations under 28 U.S.C.
§ 2255(f)(1). All three nevertheless contend on appeal that their
petitions are timely under 28 U.S.C. § 2255(f)(3) because Johnson
II, which is retroactively applicable, is the source of their
claims. Specifically, Dimott, Collamore, and Casey argue that
they were sentenced pursuant to the ACCA's (now-void) residual
clause, so their sentences must be vacated, and they cannot be
resentenced under the ACCA's enumerated clause in light of Mathis
v. United States, 136 S. Ct. 2243 (2016),1 a case that is not
retroactively applicable.
The district courts in all three cases dismissed the
petitions on procedural grounds. We affirm the dismissals. All
1 More specifically, the petitioners argue that Mathis
requires that we overrule this court's holding in United States v.
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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 residual clause.
I.
We first determine, as to each petitioner, whether the
district court sentenced him pursuant to the enumerated or (the
separate) residual clause of the ACCA. Accordingly, we give the
relevant procedural history of each case.
A. Dimott
Richard Dimott pled guilty to one count of being a felon
in possession of a firearm on March 30, 2007, in violation of 18
U.S.C. §§ 922(g)(1) and 942(e). Based on his eight previous state
convictions in Maine for burglary, see Me. Rev. Stat. Ann. tit.
17-A, § 401, the district court concluded that Dimott qualified
for the sentencing enhancement under the ACCA, but did not specify
under which clause -- enumerated or residual -- it was sentencing
him. On September 6, 2007, the district judge sentenced Dimott
to 150 months of imprisonment and five years of supervised release.
Dimott did not appeal his sentence.
Duquette, 778 F.3d 314, 317 (1st Cir. 2015), that a Maine burglary
conviction is a violent felony under the enumerated clause, 18
U.S.C. § 924(e).
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About nine years after his conviction, Dimott filed a
motion to correct his sentence under 28 U.S.C. § 2255 on June 27,
2016. This was within one year of the Supreme Court's decision
in Johnson II. Dimott argued that his convictions for Maine
burglary cannot be the basis for his ACCA sentence because the
Supreme Court's 2016 decision in Mathis made clear that Maine
burglary is nongeneric and thus did not fall under the enumerated
clause, and Johnson II invalidated sentences that were based on
the ACCA's residual clause.
The district court denied Dimott's habeas petition for
being untimely. The same judge who had sentenced Dimott earlier
under the ACCA, rejected the petition:
Johnson II is understood to be one such
decision newly recognizing a right that is
retroactively applicable . . . . However,
Dimott was deemed eligible for an ACCA
sentence based only on burglary convictions,
which qualify under ACCA's "enumerated
clause." . . . Dimott's reliance on Mathis
is also misplaced. In contrast to Johnson II,
Mathis has not been recognized as a case that
announced a new substantive rule that is
retroactively applicable to cases on
collateral review.
Dimott v. United States, Nos. 2:06-cr-26, 2:16-cv-347, 2016 WL
6068114, at *2-3 (D. Me. Oct. 14, 2016) (emphasis added). The
district court issued Dimott a certificate of appealability, and
he filed this appeal on October 21, 2016.
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B. Collamore
Wayne N. Collamore pled guilty on December 21, 2010, to
one count of escape from the custody of the United States Bureau
of Prisons, in violation of 18 U.S.C. § 751(a), and one count of
being a felon in possession of a firearm. Based on, inter alia,
his five previous state convictions for Maine burglary, the
district court found Collamore to be an armed career criminal,
again without specifying under which clause of the ACCA. On March
23, 2011, the sentencing judge imposed five years of imprisonment
for the escape count, and a concurrent 210 months of imprisonment
-- based on the ACCA enhancement -- for the firearm count.
Collamore did not appeal his sentence.
More than five years after his conviction and
sentencing, Collamore filed a § 2255 motion on May 19, 2016,
arguing that his ACCA predicates were invalid post-Mathis. The
reviewing judge, who was also Collamore's sentencing judge, denied
Collamore's habeas petition for being untimely. That judge
specifically cited the Dimott decision to explain the dismissal:
This Court has recently had occasion to
consider whether Mathis triggered a new one-
year period for habeas relief under 28 U.S.C.
§ 2553(f)(3). In Dimott, this Court
concluded that it did not. This Court also
concluded that Johnson II does not provide a
basis to challenge the status of convictions
that were deemed to fall within ACCA's
enumerated clause, as opposed to the now-
invalidated residual clause.
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Collamore v. United States, Nos. 2:16-cv-259, 2:10-cr-158, 2016 WL
6304668, at *2 (D. Me. Oct. 27, 2016) (internal citations omitted).
The district court issued a certificate of appealability, and this
appeal was docketed on October 31, 2016.
C. Casey
Charles H. Casey, Jr., pled guilty to being a felon in
possession of a firearm on April 27, 2012. The district court
found that Casey qualified for an ACCA sentencing enhancement based
on, inter alia, his three prior convictions in Maine for burglary,
without specifying which ACCA clause was involved, and sentenced
Casey to 180 months of imprisonment. Casey did not appeal his
sentence.
Nearly four years after his conviction and sentencing,
Casey filed a § 2255 motion on June 27, 2016, collaterally
attacking his sentence. The same judge who had sentenced Casey,
heard the petition. Casey argued that his Maine burglary
convictions did not constitute predicate offenses under the ACCA.
The Government responded that Casey's petition was barred because
his Johnson II claim was procedurally defaulted. The district
court agreed with the Government and found that Casey failed to
demonstrate that his procedural default would unfairly prejudice
him "[b]ecause extant First Circuit caselaw holds that Casey's
prior Maine burglary convictions remain qualifying enumerated
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violent felonies even after Johnson's invalidation of the residual
clause."
Although the Government did not raise -- and the district
court did not address -- either the timeliness issue or the merits
of whether the Maine burglary statute was generic, the certificate
of appealability, requested by Casey, touched indirectly on both:
Casey's petition raises the following issues:
(1) whether the retroactive application of
Johnson allows any petitioner serving an ACCA
sentence to have his qualifying "violent
felony" convictions re-examined even if those
convictions appear to fall under the ACCA's
enumerated clause; and (2) if so, whether
Mathis has effectively overruled the First
Circuit's decision . . . that a Maine
burglary conviction . . . qualifies as a
violent felony under ACCA's enumerated clause.
Casey timely filed this appeal.
II.
Dimott, Collamore, and Casey argue on appeal that the
district courts erred in denying their petitions because they were
sentenced pursuant to the ACCA's (now-void) residual clause. We
review de novo the district courts' denials of their habeas
petitions on procedural grounds. See Wood v. Spencer, 487 F.3d
1, 3 (1st Cir. 2007) (citing Rodriguez v. Spencer, 412 F.3d 29, 32
(1st Cir. 2005)). Because we find all three petitions time-
barred, we do not reach the merits of the petitioners' argument
that their predicate offenses no longer qualify under the ACCA
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because Johnson II voids the residual clause and Mathis renders
Maine burglary a nongeneric offense that does not qualify under
the enumerated clause.
Congress enacted the Antiterrorism and Effective Death
Penalty Act (AEDPA) "in part to combat increasingly pervasive
abuses of the federal courts' habeas jurisdiction." Delaney v.
Matesanz, 264 F.3d 7, 10 (1st Cir. 2001) (citing Felker v. Turpin,
518 U.S. 651, 664 (1996)). The statute imposes a one-year statute
of limitations on federal prisoners for filing habeas petitions,
which runs from the latest of "(1) the date on which the judgment
of conviction bec[ame] final; . . . [or] (3) the date on which the
right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review." 28
U.S.C. § 2255(f).
More than one year had passed between the time each
petitioner's conviction became final and the date on which each
petitioner filed his § 2255 motion. As such, for their petitions
to be timely, Dimott, Collamore, and Casey must demonstrate that
(1) their claims arise from a right that "has been newly recognized
by the Supreme Court and made retroactively applicable," and that
(2) they filed within one year of the Supreme Court's decision
recognizing that right. Id. Each petitioner argues that Johnson
II -- which the Supreme Court held is retroactively applicable on
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collateral review, see Welch v. United States, 136 S. Ct. 1257,
1268 (2016) -- is the basis of his claim, and that his petition is
timely. We disagree and find all three petitions untimely because
they raise Mathis, not Johnson II, challenges, and, in any event,
the petitioners have no Johnson II claims. We first address the
petitions of Dimott and Collamore, before turning to Casey.
A. Dimott and Collamore
We find it plain that Dimott's and Collamore's petitions
do not raise Johnson II challenges because the record reflects
that they were sentenced under the ACCA's enumerated clause, not
the residual clause. As such, we need not delve into the merits
because their petitions, at most, raise untimely Mathis claims.
On collateral review, the district court judge in both
cases (who had also served as the sentencing judge) found that
Dimott and Collamore had earlier been sentenced pursuant to the
ACCA's enumerated clause. See Collamore, 2016 WL 6304668, at *2
("Johnson II does not provide a basis to challenge the status of
[Collamore's] convictions that were deemed to fall within ACCA's
enumerated clause, as opposed to the now-invalidated residual
clause."); Dimott, 2016 WL 6068114, at *2 ("Dimott was deemed
eligible for an ACCA sentence based only on burglary convictions,
which qualify under ACCA's 'enumerated clause.'").
Although these findings were made during the collateral
review process, and not expressly stated at the time of sentencing,
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we give them due weight because the habeas judge was describing
his own decisions at sentencing. Cf. United States v. DiCarlo,
575 F.2d 952, 954 (1st Cir. 1978) (holding that "if the [post-
conviction relief] claim is based upon facts with which the trial
court, through review of the record or observation at trial, is
familiar, the court may make findings without an additional
hearing"); see also United States v. Snyder, 871 F.3d 1122, 1128
(10th Cir. 2017) (giving due weight to the district court's
determination that "as a matter of historical fact, . . . it did
not apply the ACCA's residual clause in sentencing [the defendant]
under ACCA"); Feldman v. Perrill, 902 F.2d 1445, 1447 (9th Cir.
1990) (crediting the district court's determination that "he had
not relied on the 1976 conviction, only the underlying conduct,"
when the petitioner "initiated an attack on his federal sentence,
arguing that it had been improperly enhanced due to the sentencing
judge's reliance on an allegedly invalid state conviction").
Here, too, there is no gap in information about what happened.
And the petitioners do not contend that the district court was
incorrect in its characterization.
Because they were sentenced pursuant to the ACCA's
enumerated clause, Dimott and Collamore are, at most, asserting a
claim about Mathis. In fact, the linchpin of both petitioners'
argument is that Mathis dictates that Maine burglary is a
nongeneric offense, so it cannot qualify as an ACCA predicate.
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The Supreme Court has indicated, though, that Mathis did not
announce a new, retroactively applicable rule. See 136 S. Ct. at
2257 (noting that the case was a "straightforward" application of
more than "25 years" of precedent). Thus, the precondition for
the timeliness requirement under § 2255(f)(3) is not met. Cf.
Stanley v. United States, 827 F.3d 562, 565 (7th Cir. 2016)
("Johnson does not have anything to do with the . . . elements
clause of . . . the Armed Career Criminal Act, and § 2255(f)(3)
therefore does not afford prisoners a new one-year period to seek
collateral relief on a theory that the elements clause does not
apply to a particular conviction.").
To circumvent the statute of limitations, Dimott and
Collamore try to pass off their Mathis claims under the guise of
Johnson II claims, but their argument is foiled by a logical
misstep. In order to even arguably invoke Johnson II, they must
first succeed in arguing -- on the merits -- that their ACCA
enhancement relies on the residual clause because Mathis renders
Maine burglary a nongeneric offense. That is the essence of a
Mathis challenge. To hold otherwise would create an end run around
AEDPA's statute of limitations. It would allow petitioners to
clear the timeliness bar by bootstrapping their Mathis claims onto
Johnson II claims, even where, as here, the merits of their case
entirely depend on whether their previous convictions still
qualify as ACCA predicates in light of Mathis. This cannot be
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right. The district court correctly concluded that Dimott's and
Collamore's petitions depended on Mathis, and were thus untimely.
B. Casey
The remaining petitioner, Casey, presents a somewhat
different case because (1) the Government failed to assert the
timeliness defense before the district court, and (2) the record
is silent as to which ACCA clause -- enumerated or residual -- the
district court earlier relied on. Regardless, Casey's petition
is time-barred for the same reason as the other two petitions: it
raises a Mathis, not a Johnson II, challenge.
1. Forfeiture
The Government failed to argue before the district court
that Casey's petition was untimely, relying instead on another
procedural bar: that Casey had defaulted his Johnson II claim. On
appeal, Casey attempts to use the Government's omission as a shield
against AEDPA's strict statute of limitations and argues that the
government may no longer raise the timeliness issue on appeal.
We disagree that the Government's inadvertence is fatal
to applying the timeliness bar here. The Supreme Court has
repeatedly recognized the power of federal courts to raise sua
sponte the timeliness of habeas petitions. See Wood v. Milyard,
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566 U.S. 463, 473 (2012) (courts of appeals); Day v. McDonough,
547 U.S. 198, 209 (2006) (district courts).2
The dissent asserts that appellate courts may excuse the
Government's waiver only if the Government proves that the case is
"exceptional." But that is a misreading of Wood.3 There, the
Supreme Court reaffirmed the general principle that "court[s] may
consider a statute of limitations or other threshold bar the State
failed to raise in answering a habeas petition," 566 U.S. at 466(citations omitted), and only cautioned against doing so if "the
State, after expressing its clear and accurate understanding of
the timeliness issue, deliberately steer[s] the District Court
away from the question and towards the merits," id. at 474(citations omitted). The Court narrowly held in Wood that it was
2 Both Day and Wood concerned federal habeas petitions
brought by state prisoners under 28 U.S.C. § 2254, not by federal
prisoners under § 2255. We see no reason, however, why this
Court's power to raise sua sponte the timeliness defense for § 2254
cases should not extend to § 2255 cases. The statute of
limitations provisions of both statutes mirror one another, and
the considerations flagged by the Supreme Court in Day -- "judicial
efficiency," "conservation of judicial resources," and "finality,"
547 U.S. at 205-06 (quoting Acosta v. Artuz, 221 F.3d 117, 123 (2d
Cir. 2000)) -- apply equally in the context of federal prisoners
seeking post-conviction relief.
3 In any case, the Supreme Court found in Day, the
predecessor to Wood, that inadvertent error can constitute an
"extraordinary circumstance[]" that justifies raising the
timeliness bar sua sponte. See Wood, 566 U.S. at 471 (citing Day,
547 U.S. at 201, 203). In Day, the Government erroneously informed
the district court the petition was timely, due to a
miscalculation. Id.- 13 -
an abuse of discretion to raise timeliness sua sponte in that case
because "the State twice informed the U.S. District Court that it
'would not challenge, but [is] not conceding, the timeliness of
Wood's habeas petition,'" id. at 465, thereby evincing clear
gamesmanship.
That is not the situation here. Assuming arguendo that
similar concerns govern federal petitioner § 2255 cases as state
petitioner § 2254 cases, the Government did not "strategically
withh[o]ld the [limitations] defense or cho[o]se to relinquish it"
in order to reach the merits of Casey's petition. Id. at 472
(alteration in original) (quoting Day, 547 U.S. at 210-11).
Rather, the Government argued procedural default (another
procedural bar) but made no mention of the defense of untimeliness
at that point. The dissent makes much ado about the fact that the
same U.S. Attorney's Office raised the timeliness bar in opposition
to Dimott's and Collamore's petitions. But the Government's
inconsistency, if anything, demonstrates inadvertence, not
stratagem -- it simply had nothing to gain by only raising one
procedural bar instead of two.
Moreover, unlike in Wood, the certificate of
appealability arguably raised the timeliness issue, and the
Government did brief it on appeal and argue that it did not waive
the timeliness bar. In fact, the crux of the Government's position
is that petitioners cannot reset the one-year statute of
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limitations using § 2255(f)(3) because they fail to raise Johnson
II claims. As such, we would not be rewarding the Government for
any gamesmanship before the district court if we were to bypass
its failure to raise the untimeliness defense at the outset before
the district judge.
There is also no issue of procedural fairness. Casey,
the losing party in district court on other grounds, had ample
notice of the timeliness defense -- beginning with the issues
raised in the certificate of appealability -- and the opportunity
to actually respond, both as to briefing and during oral argument
before this court, which he has done. We would, by reaching the
timeliness issue, further "[t]he considerations of comity,
finality, and the expeditious handling of habeas proceedings" that
are at the very core of AEDPA. Day, 547 U.S. at 208. Accordingly,
the balance of relevant factors favors the ability of the
Government to assert the timeliness defense now.4
Indeed, contrary to the dissent's assertion that this
court "religiously" holds waiver against the Government, we --
along with other courts of appeals -- have upheld the discretion
of federal courts to deny habeas petitions on procedural grounds
in analogous contexts.5 See Oakes v. United States, 400 F.3d 92,
4 We do not rule on the correctness of the district court's
holding that Casey's Johnson II claim was procedurally defaulted.
5 And this case is clearly distinguishable from cases in
which other courts of appeals have declined to act sua sponte.
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97 (1st Cir. 2005) (finding that the district court did not err in
excusing the government's failure to raise the procedural default
bar); see also Coulter v. Kelley, 871 F.3d 612, 618 (8th Cir. 2017)
(finding that the district court did not err in considering
timeliness sua sponte when the State "did not knowingly and
intelligently waive its statute-of-limitations defense," and was,
at most, negligent); In re Williams, 759 F.3d 66, 69 (D.C. Cir.
2014) (finding that the court of appeals could raise, sua sponte,
the timeliness bar to deny petitioner's motion for a successive
petition for post-conviction relief).
Accordingly, we proceed to consider the timeliness of
Casey's petition.
2. Burden of Proof and Production on Petitioner
Casey contends that his petition is timely. He urges
us to adopt a rule that, when faced with a silent record, we must
assume the district court sentenced the defendant pursuant to the
residual clause. Casey does not, however, assert that he was in
fact sentenced under the residual clause.
See, e.g., United States v. Miller, 868 F.3d 1182, 1186 (10th Cir.
2017) (relying, in part, on the fact that the petitioner "ha[d]
been afforded no opportunity to respond to the Government's new
timeliness argument"); In re Jackson, 826 F.3d 1343, 1348 (11th
Cir. 2016) (emphasizing that "[n]either the Government nor [the
petitioner] . . . presented a position about a limitations
defense").
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In urging this rule, Casey asks us to break with our
time-honored precedent. This circuit has long held that federal
post-conviction petitioners bear the burden of proof and
production under § 2255, and must "establish[] by a preponderance
of the evidence that they are entitled to relief." DiCarlo, 575
F.2d at 954. Other circuits agree. See, e.g., Stanley, 827 F.3d
at 566 ("As the proponent of collateral review, [the petitioner]
had to produce evidence demonstrating entitlement to relief."
(citations omitted)); In re Moore, 830 F.3d 1268, 1272 (11th Cir.
2016) (aggregating cases across seven circuits that hold the same).
The Eleventh Circuit has applied this burden of proof
specifically to situations where federal petitioners allege that
they raise Johnson II claims. See Beeman v. United States, 871
F.3d 1215, 1221 (11th Cir. 2017) ("We conclude and hold, that,
like any other § 2255 movant, a Johnson § 2255 claimant must prove
his claim."). In Beeman, the court announced a clear rule: "To
prove a Johnson II claim, the movant must show that -- more likely
than not -- it was the use of the residual clause that led to the
sentencing court's enhancement of his sentence." Id. at 1221-22.
A mere possibility is insufficient.6
6 In re Chance, 831 F.3d 1335 (11th Cir. 2016), an Eleventh
Circuit case cited by the petitioners, construed silence in the
petitioner's favor. See id. at 1341. However, that case preceded
Beeman. And in any event, the opinion itself acknowledged that
its proposed rule lacked legal force because it was only dicta.
See id. at 1339.
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This approach makes sense. Petitioners should bear the
burden of proof because they were certainly present at sentencing
and knowledgeable about the conditions under which they were
sentenced. Furthermore, any other rule would undercut an
animating principle of AEDPA: the presumption of finality. And
"[w]ithout finality, the criminal law is deprived of much of its
deterrent effect." Teague v. Lane, 489 U.S. 288, 309 (1989).
Casey fails to point to any evidence suggesting that he
was sentenced under the residual clause. 7 Nevertheless, the
dissent repeatedly insists that because the district judge found
Casey's Johnson II claim procedurally defaulted, he expressly
found that "Casey raised a timely Johnson II claim." This is
plainly incorrect. That the district judge could have, but did
not, raise timeliness sua sponte, and instead relied on another
procedural bar, is not tantamount to finding that Casey was, in
fact, sentenced pursuant to the residual clause. This is
especially so when procedural default was the only procedural bar
the Government raised. To say otherwise would be to hold that the
dismissal of a habeas petition on one ground is an express finding
that the petition is otherwise valid on every other ground.
7 Casey did not ask for remand to the district court to
prove that he was in fact sentenced solely under the residual
clause. He has chosen to proceed on the record as it now exists.
See Beeman, 871 F.3d at 1221.
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The dissent also argues that because the district
court's order expressly stated that "Casey's Johnson claim is a
novel constitutional claim that applies retroactively," Casey,
2016 WL 6581178, at *3, it indicated "clear[ly] and
unambiguous[ly]" that he was sentenced pursuant to the residual
clause. Again, not so. The dissent takes this language out of
context. That the district court found Casey had cause for his
procedural default -- because Johnson II created a novel,
retroactively applicable right -- is not equivalent to finding, on
the merits, that Casey raised a valid Johnson claim. Otherwise,
any petitioner who clears the procedural default hurdle
automatically succeeds on the merits. That cannot be right.
The Eleventh Circuit decision that Casey flags, In re
Adams, 825 F.3d 1283 (11th Cir. 2016), lends no support to the
contrary. There, the court permitted the petitioner's Johnson II
claim despite a silent record because clear Supreme Court and
Eleventh Circuit precedent at the time of sentencing held that a
conviction under the Florida burglary statute was an ACCA predicate
under the residual clause. See id. at 1285. This case presents
the opposite fact pattern. Our decision in Duquette held that
Maine burglary qualifies as a predicate offense under the ACCA's
enumerated clause. See 778 F.3d at 317. Although Duquette was
decided in 2016, the opinion describes its holding as a
"straightforward" application of the 1990 Supreme Court decision
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in Taylor v. United States, 495 U.S. 575 (1990). See 778 F.3d at
317. Other district courts at the time of Casey's sentencing also
treated Maine burglary as a generic offense. For instance,
Dimott's and Collamore's sentences were found subject to the
enumerated clause based on the petitioners' Maine state burglary
convictions just a few years before.
Casey directs our attention to three cases, United
States v. Geozos, 870 F.3d 890 (9th Cir. 2017); United States v.
Winston, 850 F.3d 677 (4th Cir. 2017); and United States v. Taylor,
873 F.3d 476 (5th Cir. 2017), that purportedly espouse his
requested approach.
The Ninth Circuit in Geozos held that a state or federal
petitioner has a valid Johnson II claim whenever the sentencing
court "may have" relied on the residual clause. 870 F.3d at 896.
The court said it did so based on an extension of the Stromberg
principle, which prescribes that a general verdict is void if it
"may have rested" on an unconstitutional ground. Id. (quoting
Griffin v. United States, 502 U.S. 46, 53 (1991)). In the Ninth
Circuit's view, a post-conviction finding by a judge as to the
basis for a petitioner's enhanced sentence should not be treated
"any differently than a finding made by a jury for the purpose of
conviction." Id.Our view is different. We think the focus must be on
the fact that we are applying clear limits established by Congress
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for when federal post-conviction petitions may be entertained by
the federal courts, an issue not implicated at all by Stromberg.
There are also many reasons why collateral review is unique.
"Chief among them is the principle that 'direct appeal is the
primary avenue for review of a conviction or sentence . . . .
When the process of direct review . . . comes to an end, a
presumption of finality and legality attaches to the conviction
and sentence.'" In re Moore, 830 F.3d at 1272 (alterations in
original) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)).
That presumption is irreparably undermined if the Government is
forced to bear the burden of proving that each Johnson II claimant
does not have a valid Johnson II claim. The burden should fall
on the petitioner to establish by a preponderance of the evidence
a necessary element of his Johnson II claim -- that his ACCA
sentence rested on the residual clause.
The Fourth Circuit in Winston agreed with the Ninth
Circuit as to state habeas claimants, but on different grounds.
The Fourth Circuit reasoned that "imposing the burden on movants
[to show they had been sentenced under the residual clause]. . .
would result in 'selective application' of the new rule of
constitutional law announced in Johnson II, violating 'the
principle of treating similarly situated defendants the same.'"
Winston, 850 F.3d at 682 (quoting In re Chance, 831 F.3d at 1341).
We think that does not follow. Requiring habeas petitioners to
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establish -- by a preponderance of the evidence -- that they were
sentenced pursuant to the residual clause does not lead to treating
similarly situated defendants differently. Precisely the
opposite: it is imposing a uniform rule. That the burden is less
friendly to petitioners than the one put forth in Winston does not
make it unequal.
Moreover, Winston's reliance on Teague to justify
shifting the burden of proof onto the Government is misplaced. In
Teague, the Supreme Court held that "habeas corpus cannot be used
as a vehicle to create new constitutional rules of criminal
procedure unless those rules would be applied retroactively to all
defendants on collateral review." 489 U.S. at 316. Although the
Court noted that "once a new rule is applied to the defendant in
the case announcing the rule, evenhanded justice requires that it
be applied retroactively to all who are similarly situated," id.
at 300, it never said that evenhanded justice requires the
Government to bear the burden of proving that the petitioner does
not have a valid claim for relief. In fact, shifting the burden
would implicate one of the Supreme Court's chief concerns in
Teague: that the "costs imposed . . . by retroactive application
of new rules of constitutional law on habeas corpus" would "far
outweigh the benefits of this application" if "it continually
forces the [Government] to marshal resources in order to keep in
prison defendants whose trials and appeals conformed to then-
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existing constitutional standards." 489 U.S. at 310 (citations
omitted).
Finally, the Fifth Circuit's decision in Taylor is
clearly distinguishable. In that case, the court held that a
federal prisoner had a valid Johnson II claim even though the
record was silent, and the district court later declared that the
"residual clause 'did not play any role in Movant's sentencing.'"
Taylor, 873 F.3d at 481. Although the court described the
approaches taken by the Fourth, Ninth, and Tenth Circuits, it did
not decide "which, if any, of these standards [it would] adopt."
Id. at 481-82. Instead, the court held that "[the petitioner's]
claim merit[ed] relief" because "there was precedent suggesting
that Taylor's third predicate conviction could have applied only
under the residual clause." Id. at 482. No such precedent exists
here. Rather, at the time of Casey's sentencing, many district
courts did not even consider the residual clause as the basis for
defendants' ACCA sentences when faced with predicate offenses
under state burglary statues similar to Maine's. See, e.g.,
United States v. Miller, 478 F.3d 48, 50-52 (1st Cir. 2007)
(Connecticut burglary statute); United States v. Bennett, 469 F.3d
46, 49-50 (1st Cir. 2006) (Rhode Island burglary statute); United
States v. Mastera, 435 F.3d 56, 60-62 (1st Cir. 2006)
(Massachusetts burglary statute).
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Our view is different from those taken in Geozos,
Winston, and Taylor. Placing the burden of proof and production
on habeas petitioners is in accord with our precedent and with the
goals of AEDPA. See Turner v. United States, 699 F.3d 578, 587
(1st Cir. 2012) (noting that "AEDPA's purpose is to further
finality of convictions" (citing Duncan v. Walker, 533 U.S. 167,
178 (2001))). We hold that to successfully advance a Johnson II
claim on collateral review, a habeas petitioner bears the burden
of establishing that it is more likely than not that he was
sentenced solely pursuant to ACCA's residual clause. Casey has
not met that burden. Instead, as noted, he has never argued that
he was actually sentenced under the residual clause. Accordingly,
we find Casey's petition, which -- like those of Dimott and
Collamore -- relies solely on the non-retroactive decision in
Mathis, untimely.8
III.
For the foregoing reasons, we affirm the district
courts' dismissals of Dimott's, Collamore's, and Casey's § 2255
petitions.
8 Casey also attempts to argue that Mathis is not new law,
but merely "clarifies" longstanding law. This is in effect an
argument that Duquette was wrongly decided at the outset. That
again goes to the merits of his Mathis claim, and does not alter
the fact that Mathis does not apply retroactively on collateral
review. Cf. 136 S. Ct. at 2257.
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-Dissenting Opinion Follows-
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TORRUELLA, Circuit Judge (Joining in part and Dissenting
in part). I join the majority in affirming the dismissals of
Dimott's and Collamore's § 2255 petitions as untimely. However,
I cannot join in the majority's disparate and inconsistent
treatment of Casey's petition for habeas relief, as opposed to its
treatment of the other two petitions at issue, in order to avoid
what this case truly calls for: a re-evaluation of this Court's
opinion in Duquette in light of the Supreme Court's decision in
Mathis.
In the cases of Dimott and Collamore, the majority
correctly gives "due weight" to the habeas judge's finding that
the petitioners were sentenced according to the ACCA's enumerated
clause because the habeas judge was also the sentencing judge. It
is eminently reasonable that a sentencing judge is capable of
determining the basis upon which he or she imposed a sentence
enhancement when subsequently reviewing that sentence on a § 2255
habeas petition. See Schriro v. Landrigan, 550 U.S. 465, 495–96
(2007) (stating that a judge's memory deserves some deference
provided it is based on a complete review of the case). Here,
Judge Singal had the opportunity to review Dimott and Collamore's
cases prior to determining that he had sentenced them under the
enumerated clause. Thus, that determination deserves the
deference, as the panel majority recognizes.
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The same deference must be given to the habeas judge who
reviewed Casey's petition, Judge Hornby, who -- like Judge Singal
in Dimott and Collamore's cases -- was the judge that sentenced
Casey. On habeas review, Judge Hornby, also facing a silent record
as to the clause under which he applied Casey's ACCA sentencing
enhancement, found that Casey did raise a Johnson II claim --
meaning that his sentence was enhanced pursuant to the ACCA's
residual clause. See Casey, 2016 WL 6581178, at *3. Judge Hornby
analyzed the habeas petition accordingly. Id., at *3-5. Yet, the
majority inexplicably fails to give Judge Hornby the same deference
that it gives to Judge Singal.
The majority incorrectly assumes that my "insist[ence]"
that the district court found that Casey raised a timely Johnson
II claim is that the court analyzed the Government's procedural-
default argument. This is wide of the mark. Rather, I so find
after according Judge Hornby's words their clear and unambiguous
meaning. See id., at *3 ("I conclude that . . . Casey's Johnson
claim is a novel constitutional claim that applies retroactively,
and he has therefore shown cause for [failing to argue that the
ACCA residual clause was unconstitutional at sentencing or on
appeal]."), *4 n.9 ("As I have determined above, Casey's Johnson
claim is a novel constitutional claim with retroactive application
. . . ."). The majority rationalizes its disregard of this plain
language by claiming that I "take [it] out of context." Yet, as
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the majority notes, should the district court have believed that
Casey had been sentenced pursuant to anything but the ACCA's
residual clause, it could have raised timeliness sua sponte. The
district court was clearly aware that similar petitions had been
decided on timeliness grounds -- it even discussed Dimott in its
decision; should it have believed such an argument appropriate, it
would not have needed to reach the merits of Casey's Johnson II
claim in order to conduct a prejudice analysis. See id. at *5.
But, it did not raise the issue, and after finding that Casey was
sentenced pursuant to the residual clause, embarked on the more
onerous procedural default analysis. "Due regard for the trial
court's processes and time investment is . . . a consideration
appellate courts should not overlook." Wood, 566 U.S. at 474.
In a further departure from this Court's guiding
judicial doctrines, the majority raises sua sponte the issue of
the timeliness of Casey's habeas petition, which the Government
did not argue below. In doing so, the majority ignores the advice
provided by the Supreme Court in Wood that, in situations such as
this, "[a]though a court of appeals has discretion to address, sua
sponte, the timeliness of a habeas petition, appellate courts
should reserve that authority for use in exceptional cases." Id.
at 473 (finding that the appellate court abused its discretion in
raising the timeliness issue sua sponte); see also Cole v. Int'l
Union, United Auto., Aerospace & Agric. Implement Workers of Am.,
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533 F.3d 932, 936 (8th Cir. 2008) (applying only a "narrow
exception" to established preservation rule). The Government
makes no argument that this is an exceptional case, and --
especially in light of Judge Hornby's finding that Casey raised a
timely Johnson II claim -- this is not the appropriate case for
the Court to act on its own accord. Here, as in Wood, where the
Government forewent an argument below, we should not exercise our
confined discretion to save the Government's waiver.
To justify its divergence from Wood's guidance and find
that the Government did not forfeit its timeliness argument, the
majority speculates -- in the Government's favor -- as to the
reason that the Government did not advance this argument. I cannot
subscribe to this guesswork approach. This Court religiously
finds a party's failure to raise an argument before the district
court as waived on appeal. See, e.g., United States v. Román-
Huertas, 848 F.3d 72, 77 (1st Cir. 2017) ("The Government did not
raise [petitioner's] untimely objection before the district court,
. . . and so it [is] waived . . . ."); Sotirion v. United States,
617 F.3d 27, 32 (1st Cir. 2010) (finding the Government's
procedural default argument waived for failing to raise it as a
defense in the district court to a § 2255 petition). The same
waiver must apply here, and we should refrain from such "unguided
speculation." Cf. Halloway v. Arkansas, 435 U.S. 475, 491 (1978)
(finding a harmless-error analysis inappropriate in assessing
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constitutional error of joint representation); Walsh v. Teltech
Systems, Inc., 821 F.3d 155, 160 (1st Cir. 2016) (stating that
appellate courts draw all reasonable inferences in favor of the
nonmoving party but ignore unsupported speculation when reviewing
an award of summary judgment).
Moreover, I have significant qualms with the effect that
the majority's reasoning has on the waiver doctrine. The majority
credits the Government for "brief[ing] [the timeliness issue] on
appeal and argu[ing] that it did not waive the timeliness bar."
Yet, this is precisely what the waiver doctrine is intended to
prevent. Applying the majority's approach would allow any party
that chose not to raise an argument in the district court to simply
brief that issue on appeal and argue that it did not waive the
issue below. In those circumstances, we would find the argument
waived, as we should in this one. Further, the Government only
acknowledges its failure to raise the timeliness issue in a
footnote in its opening brief to this Court, providing scant
explanation as to why the claim was not raised below or why it
should not be treated as waived. Instead, it states that the
petitioners have briefed the issue and that this Court may raise
it sua sponte. Such an undeveloped address is hardly sufficient
to save the argument from waiver on appeal. United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
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a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
Instead, I would find that the Government relinquished
its timeliness argument in the district court. I note that this
same U.S. Attorney's Office (for the District of Maine) raised the
issue of timeliness in its oppositions to both Dimott's and
Collamore's § 2255 petitions, both filed within six weeks of its
opposition to Casey's petition. While the majority attributes the
Government's decision not to advance this argument in response to
Casey's petition as inadvertence rather than strategy, I do not so
conjecture. This strikes me as an appropriate basis for finding
that the Government displayed its "clear and accurate
understanding of the timeliness issue" and "knew that it had an
arguable statute of limitations defense," but relinquished that
argument. Wood, 566 U.S. at 474 (internal quotation marks and
citation omitted).
Finally, the majority's finding that Casey failed to
satisfy his burden of proving by a preponderance of the evidence
that he was sentenced under the residual clause is equally
unpersuasive. The majority pronounces that, in the face of a
silent record, placing the burden on a petitioner "makes
sense . . . because they were certainly present at sentencing and
knowledgeable about the conditions under which they were
sentenced." I fail to see what could better satisfy the majority's
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evidentiary requirement that petitioner was sentenced under the
residual clause than a finding by the sentencing judge, who was
also "certainly present at sentencing" and far more knowledgeable
of his own sentencing decisions. I have a difficult time thinking
of what further evidence, in the face of a silent record, could be
more convincing. The majority suggests in a footnote that Casey
could have asked for a remand to the district court to prove that
he was sentenced solely under the residual clause; however, such
a request would have been nonsensical after the habeas judge
clearly already found as much. See Casey, 2016 WL 6581178, at *3.
Given the deference owed to the habeas judge here, I
would find that, under any of the standards announced by our sister
circuits and discussed by the majority,9 Casey has shown that he
9 As the majority explains, there is an emerging split
amongst the circuit courts as to the burden of proof placed on
petitioners facing a silent record who, through a § 2255 petition,
maintain that their sentences were enhanced pursuant to the
residual clause of the ACCA. The Fifth Circuit described this
split well in Taylor, 873 F.3d at 480-81 (citing Beeman, 871 F.3d
at 1221-22 (finding that a defendant must show that "more likely
than not" he was sentenced according to the residual clause);
Snyder, 871 F.3d 1122 (10th Cir. 2017) (stating that courts should
look to the law at the time of sentencing and determine whether a
defendant's convictions fell within the scope of the other ACCA
clauses); Geozos, 870 F.3d at 895 (holding that, "when it is
unclear whether a sentencing court relied on the residual clause
in finding that a defendant qualified as an armed career criminal,
but it may have, the defendant's § 2255 claim 'relies on' the
constitutional rule announced in Johnson II." (citing Winston, 850
F.3d at 682)); Winston, 850 F.3d at 682 (finding that imposing the
burden on movants would result in "selective application" of the
new rule announced in Johnson II)).
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was sentenced pursuant to the residual clause and thus brought
forth a timely Johnson II claim. This Court should analyze the
matter accordingly. As the district court did below, we would
accordingly need to address whether Casey's claim is procedurally
defaulted for failing to raise it at trial or on direct appeal.
The district court found there to be cause for Casey not having
raised the issue, but that, while believing that Mathis casts
significant doubt on the vitality of Duquette, it was bound by
this Circuit's precedent to find that Maine burglary is generic
and also falls under the enumerated clause. Casey, 2016 WL
6581178, at *5. Accordingly, it found that Casey did not suffer
any actual prejudice. Id. at *4.
The district court was correct in its ruling given its
boundaries. However, this Court is not so constrained. See
United States v. Tavares, 843 F.3d 1, 11 (1st Cir. 2016) (stating
that the court may overturn prior panel decisions when controlling
authority is subsequently announced or when, in light of new
authority, the panel would likely have changed its "collective
mind." (quoting United States v. Pires, 642 F.3d 1, 9 (1st Cir.
2011))). Mathis is subsequent controlling authority which calls
into question the vitality of our opinion in Duquette. See United
States v. Whindleton, 797 F.3d 105, 113 (1st Cir. 2015) ("An
exception to the doctrine of stare decisis applies if '[a]n
existing panel decision [is] undermined by controlling authority,
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subsequently announced, such as an opinion of the Supreme
Court . . . ." (alterations in original) (citing United States v.
Rodríguez-Pacheco, 475 F.3d 434, 441 (1st Cir. 2007))). In
Duquette, we found that because the Maine burglary statute contains
all of the elements of generic burglary, under Taylor, 495 U.S.
575, it qualified as generic burglary under the ACCA's enumerated
clause. However, Mathis has undermined this analysis, instead
calling for us to determine if one (or more) of the elements of
Maine burglary is broader than the corresponding element of the
generic offense. If so, then Maine's burglary statute, like
Iowa's burglary statute, cannot fall under the ACCA's enumerated
clause.
While we have not conducted this re-analysis of
Duquette, Casey's petition for habeas relief calls for us to do so
to determine if Casey suffered actual prejudice. Addressing this
more difficult issue -- which the majority seeks to avoid -- is
necessary to decide this case.10
Accordingly, I join in affirming the outcome proposed by
the majority in the cases of Dimott and Collamore, and respectfully
10 As pointed out by the district court below, Casey, 2016
WL 6581178, at *5 n.16, and the Government in its Rule 28(j) letter
to the Court, numerous federal circuits have recently reviewed
state burglary statutes in light of Mathis to determine whether
they continue to qualify as enumerated felonies under the ACCA.
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dissent from the majority in regards to Casey's petition for habeas
relief.
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