1st Circuit Says 2255 Rose by Any Other Name Would Still Smell – Update for February 13, 2018

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Just in time for Valentine’s Day, advice about roses. Well, about 2255 roses.

valentine180213A “2255” – regular readers will recall – is the post-conviction motion pursuant to 28 USC 2255 that federal prisoners are entitled to file. A 2255 motion essentially does duty as a petition for habeas corpus. A 2255 motion may attack a conviction or a sentence, almost always on the basis that said conviction or sentence was unconstitutional in some manner. The statute places some genuine strictures on its use: it must be filed within a year of the conviction becoming final, or within a year after the Supreme Court issues a holding on constitutional law that is made retroactive for people already convicted. The only one of those in recent history – and the one we’re concerned with today – is Johnson v. United States, a 2015 SCOTUS decision that invalidated part of the Armed Career Criminal Act.

Before Johnson, there were three ways a prior offense could be a crime of violence. It had to be either

(1) an enumerated offense (burglary, arson, extortion or use of explosive”); or

(2) an offense that has as an element the threatened use or actual use of physical force against a person; or

(3) an offense that presents a significant risk of physical harm to others.

The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left.

Johnson151213In Johnson, the Supreme Court said the residual clause was so vague that no one could figure out what it meant. For that reason, it was unconstitutional to use the residual clause to declare a crime to be one of “violence.” Before then, crimes such as drunk driving, possession of a short-barreled shotgun, and fleeing the cops were violent crimes, because someone might have been hurt. After the Johnson decision, only the enumerated crimes and those where force was used or threatened could count.

Then came Mathis v. United States. Essentially, Mathis emphasized that a rose was not always a rose. States have many different spins on laws, so what one state might call a burglary another might call something else altogether. The courts decided that when the ACCA said “burglary” or “extortion” or something else, it referred to some nonexistent common-law ideal, what those crimes were generally thought to be before the states started writing statutes.

burglar160103Mathis led courts into the world of deciding whether statutes were divisible or indivisible, and whether the statute’s language – when read with other statutes defining terms – met the definition of the generic ideal of the crime or not. Most commonly, to provide a “fer instance,” the courts agreed generic burglary required breaking and entering a building for the purpose of committing a felony. Some states use the term “structure,” which is all right provided a “structure” is not defined to include such non-buildings as cars, airplanes, boats and train cars. But many states do include these things. When Bernard Burglar is convicted of 2nd degree burglary in a state, under a statute that includes cars and boats and RVs as “structures,” the burglary conviction is too broad to count as an ACCA burglary.

Whew! All right, with that prolix prologue, let’s consider today’s three 2255 movants. The trio filed motions seeking to invalidate their ACCA sentences on the grounds that their respective state burglaries no longer qualified as generic burglaries after Mathis, and – because they could no longer count as “residual clause” crimes of violence due to Johnson, the defendants no longer had the required three prior offenses to qualify for the ACCA’s 15-year minimum sentence.

The problem the 2255 filers faced was that they had submitted their motions more than a year after Johnson, and their claims really seemed to involve Johnson only tenuously. Last week, the 1st Circuit rejected all three petitions as untimely.

johnsonretro160103The rule, as we noted, is that a petition relying on a change in the law has to be filed within a year after the decision, if the that decision was made retroactive. Johnson was made retroactive. Mathis was not.

Each inmate argued that he was sentenced under the ACCA’s now-voided residual clause, so his sentence had to be vacated, and he could not be resentenced under the enumerated offense clause because of Mathis. In each case, the district court did not say at sentencing which of the three “crime of violence” clauses applied to the ACCA sentence, but after the 2255s were filed, the sentencing judges said the enhanced sentences had been based on the enumerated offense clause, not the residual clause. The 1st Circuit said, “Although these findings were… not expressly stated at the time of sentencing, we give them due weight because the habeas judge was describing his own decisions at sentencing.

nodice180213The Circuit said no dice. In order to even arguably invoke Johnson, the prisoners had to first argue that their ACCA enhancement could not be enumerated offenses because Mathis rendered the burglaries a nongeneric offense. That, the Circuit said, “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 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.”

Calling a Mathis claim a Johnson claim is, therefore, not like calling a rose by any other name.  Rather, it’s more like calling an ox a bull – he’s grateful for the honor, but that does not give him what he needs to really be a bull (apologies to Ben Franklin).

Dimott v. United States, Case No. 16-2289 (1st Cir. Feb. 2, 2018)

– Thomas L. Root


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