Opposition Brief — Charles H. Casey, Jr., Petitioner v. United States

No. 17-1251

In the Supreme Court of the United States

CHARLES H. CASEY, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney

General

WILLIAM A. GLASER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether petitioner was entitled to postconviction relief based on Johnson v. United States, 135 S. Ct. 2551

(2015), where he failed to present any evidence or argument that he was sentenced under the residual clause of

the Armed Career Criminal Act of 1984, 18 U.S.C.

924(e), that was invalidated in Johnson, as opposed to

the Act’s still-valid enumerated offenses clause.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 7

TABLE OF AUTHORITIES

Cases:

Beeman v. United States, 871 F.3d 1215

(11th Cir. 2017) .............................................................. 12, 14

Begay v. United States, 553 U.S. 137 (2008) ....................... 10

Bennett v. Spear, 520 U.S. 154 (1997).................................. 16

Bousley v. United States, 523 U.S. 614 (1998) .......... 7, 16, 17

Brecht v. Abrahamson, 507 U.S. 619 (1993) ......................... 8

Chance, In re, 831 F.3d 1335 (11th Cir. 2016) .................. 14

Dretke v. Haley, 541 U.S. 386 (2004) ................................... 17

Hawk v. Olson, 326 U.S. 271 (1945) ....................................... 8

Hedgpeth v. Pulido, 555 U.S. 57 (2008) ............................... 13

James v. United States, 550 U.S. 192 (2007),

overruled by Johnson v. United States,

135 S. Ct. 2551 (2015) ................................................... 10, 16

Johnson v. United States, 135 S. Ct. 2551 (2015) ...... passim

Mathis v. United States, 136 S. Ct. 2243 (2016) ................... 5

Parke v. Raley, 506 U.S. 20 (1992) ......................................... 8

Reed v. Ross, 468 U.S. 1 (1984) .............................................. 4

Snyder v. United States, No. 17-7157 (Apr. 30, 2018) ......... 7

Stromberg v. California, 283 U.S. 359 (1931) ..................... 12

Sykes v. United States, 564 U.S. 1 (2011),

overruled by Johnson v. United States,

135 S. Ct. 2551 (2015) ................................................... 11, 16

Taylor v. United States, 495 U.S. 575 (1990) ........................ 9

(III)

IV

Cases—Continued:

Page

United States v. Bennett, 469 F.3d 46 (1st Cir. 2006),

cert. denied, 549 U.S. 1312 (2007) ....................................... 9

United States v. Duquette, 778 F.3d 314 (1st Cir.),

cert. denied, 136 S. Ct. 262 (2015) ........................... 4, 10, 18

United States v. Frady, 456 U.S. 152 (1982)......................... 8

United States v. Geozos, 870 F.3d 890

(9th Cir. 2017) .......................................................... 13, 14, 15

United States v. Giggey, 551 F.3d 27 (1st Cir. 2008) ... 10, 11

United States v. Mastera, 435 F.3d 56 (1st Cir.),

cert. denied, 549 U.S. 828 (2006) ....................................... 10

United States v. Snyder, 871 F.3d 1122 (10th Cir.

2017), cert. denied, No. 17-7157 (Apr. 30, 2018) ........ 14, 15

United States v. Taylor, 873 F.3d 476

(5th Cir. 2017) ...................................................................... 11

United States v. Winston, 850 F.3d 677 (4th Cir.

2017) ............................................................................... 13, 14

Welch v. United States, 136 S. Ct. 1257 (2016) ................. 3, 4

Westover v. United States, No. 17-7607 (Apr. 30,

2018) ....................................................................................... 7

Statutes and rule:

Armed Career Criminal Act of 1984, 18 U.S.C. 924(e) ........ 2

18 U.S.C. 924(a)(2)............................................................. 2

18 U.S.C. 924(e)(1)............................................................. 2

18 U.S.C. 924(e)(2)(B) ....................................................... 3

18 U.S.C. 924(e)(2)(B)(ii) .................................................. 9

18 U.S.C. 922(g)(1) ............................................................... 1, 2

28 U.S.C. 2244(b)(2)(A) ................................................... 13, 15

28 U.S.C. 2255 ............................................................... passim

28 U.S.C. 2255(a) ................................................................. 7, 9

28 U.S.C. 2255(f )(1) ................................................................. 6

28 U.S.C. 2255(f )(3) ....................................................... 6, 9, 14

V

Statute and rule—Continued:

Page

28 U.S.C. 2255(h) ................................................................... 13

Fed. R. Evid. 606(b) .............................................................. 12

In the Supreme Court of the United States

No. 17-1251

CHARLES H. CASEY, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-30a)

is reported at 881 F.3d 232. The opinion of the district

court (Pet. App. 31a-45a) is not published in the Federal

Reporter but is available at 2016 WL 6581178.

JURISDICTION

The judgment of the court of appeals was entered on

February 2, 2018. The petition for a writ of certiorari

was filed on March 8, 2018. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the District of Maine, petitioner was convicted

of possession of a firearm by a felon, in violation of

18 U.S.C. 922(g)(1). Judgment 1. The district court sentenced petitioner to 180 months of imprisonment, to be

followed by five years of supervised release. Id. at 2-3.

(1)

2

Petitioner did not appeal his conviction or sentence. In

2016, petitioner filed a motion to vacate his sentence under 28 U.S.C. 2255. Pet. App. 46a-51a. The district

court denied petitioner’s motion, id. at 31a-45a, and

granted a certificate of appealability (COA), D. Ct. Doc.

78, at 1 (Nov. 9, 2016). The court of appeals affirmed.

Pet. App. 1a-30a.

1. On June 16, 2011, petitioner’s girlfriend, Jessica

Hall, reported to police in Saco, Maine, that petitioner

had physically abused her and fired a gun inside their

apartment. Presentence Investigation Report (PSR)

¶ 3. Hall told the police that petitioner had placed the

gun inside his mouth during an argument and then fired

a round in her direction, striking the wall. Ibid. Police

officers detained petitioner later that day and found a

.22 caliber handgun under his shirt. PSR ¶ 4.

A federal grand jury charged petitioner with possession of a firearm by a felon, in violation of 18 U.S.C.

922(g)(1). Indictment 1-2. Petitioner pleaded guilty to

that offense. Plea Agreement 1.

The default sentencing range for a violation of Section 922(g)(1) is zero to ten years of imprisonment.

18 U.S.C. 924(a)(2). The Armed Career Criminal Act of

1984 (ACCA), 18 U.S.C. 924(e), prescribes a sentence of

15 years to life in prison if the defendant has at least

three prior convictions for a “serious drug offense” or a

“violent felony.” 18 U.S.C. 924(e)(1). The ACCA defines a “violent felony” as an offense punishable by more

than a year in prison 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

3

presents a serious potential risk of physical injury to another.

18 U.S.C. 924(e)(2)(B). Clause (i) is known as the “elements clause”; the first part of clause (ii) is known as

the “enumerated offenses clause”; and the latter part of

clause (ii) (beginning with “otherwise”) is known as the

“residual clause.” See Welch v. United States, 136

S. Ct. 1257, 1261 (2016).

The Probation Office determined that petitioner was

subject to an enhanced sentence under the ACCA. PSR

¶¶ 17, 58. The Probation Office noted that petitioner

had four prior convictions in Maine that qualified as violent felonies, including three convictions for burglary

and one for attempted burglary, as well as a Maine conviction for a serious drug offense (conspiracy to distribute heroin). PSR ¶¶ 17, 26, 29, 30, 32, 33. The Probation

Office did not specify whether petitioner’s burglary convictions qualified as ACCA predicate offenses under the

enumerated offenses clause (which includes “burglary”)

or the residual clause. Petitioner acknowledged that his

ACCA classification was correct. PSR Addendum.

The district court adopted the Probation Office’s determination that petitioner was an armed career criminal and sentenced him to 180 months of imprisonment.

Pet. App. 60a, 62a. Petitioner did not appeal.

2. In 2015, this Court held in Johnson v. United

States, 135 S. Ct. 2551, that the ACCA’s residual clause

is unconstitutionally vague. Id. at 2557. The Court explained, however, that its decision invalidating the residual clause “d[id] not call into question application of

the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA’s] definition of a violent felony.”

Id. at 2563. The Court later held in Welch, supra, that

4

Johnson announced a substantive rule that applies retroactively on collateral review. 136 S. Ct. at 1265.

In 2016, petitioner moved to vacate his sentence under 28 U.S.C. 2255. Pet. App. 46a-51a. Petitioner argued that Maine burglary could not qualify as a violent

felony under the ACCA’s residual clause following

Johnson. Id. at 47a, 50a. He further argued that the

enumerated offenses clause could not provide a basis for

classifying his prior convictions as violent felonies

because Maine’s burglary statute is broader than

generic “burglary” under the ACCA. Id. at 49a. Specifically, petitioner argued that the statute is overbroad

because it includes burglaries of vehicles that are

adapted for overnight accommodation. Ibid. Petitioner

acknowledged that the First Circuit had previously held

that Maine burglary categorically qualifies as generic

burglary under the ACCA’s enumerated offenses clause,

see United States v. Duquette, 778 F.3d 314, 318, cert.

denied, 136 S. Ct. 262 (2015), but he argued that Duquette was wrongly decided, Pet. App. 50a.

The district court denied petitioner’s motion. Pet.

App. 31a-45a. The court determined that, although petitioner had procedurally defaulted his Johnson claim

by failing to raise it on direct appeal, he could show

“cause” for his default because the ruling in Johnson

was “so novel that its legal basis [was] not reasonably

available to counsel” earlier. Id. at 33a-34a (quoting

Reed v. Ross, 468 U.S. 1, 16 (1984)); see id. at 37a-38a.

The court concluded, however, that petitioner could not

demonstrate “actual prejudice” to overcome his default

because, under Duquette, “Maine burglary convictions

remain qualifying enumerated violent felonies even after [Johnson’s] invalidation of the residual clause.” Id.

at 32a; see id. at 40a-41a. The court registered its view

5

that the “continued vitality” of Duquette was questionable in light of Mathis v. United States, 136 S. Ct. 2243

(2016), which had held that a statute is divisible into separate offenses for purposes of classifying a prior conviction under the ACCA if it sets forth alternative elements and not alternative means of committing a single

offense. Pet. App. 43a. The court recognized, however,

that Mathis had not “definitive[ly]” abrogated Duquette, which did not treat Maine’s burglary statute as

divisible. Ibid. The court thus determined that petitioner’s sentence was valid under the ACCA’s enumerated offenses clause, id. at 38a-40a, 43a, and thus he was

not entitled to postconviction relief based on Johnson’s

invalidation of the residual clause, id. at 32a, 45a.

The district court granted petitioner a certificate of

appealability. D. Ct. Doc. 78, at 1.

3. The court of appeals affirmed. Pet. App. 1a-30a.

a. The government argued for the first time on appeal that petitioner’s claim was untimely because he

filed his motion for postconviction relief more than one

year after “the date on which the judgment of conviction

bec[ame] final.” 28 U.S.C. 2255(f )(1); see Gov’t C.A. Br.

13-21 & n.6. It further contended that, in any event, the

district court had correctly determined that petitioner

failed to establish prejudice from his procedural default

because Maine burglary qualifies as an ACCA predicate

offense under the enumerated offenses clause. Gov’t

C.A. Br. 13 n.6, 23-46.

The court of appeals determined that the government’s “inadvertence” in failing to assert a statute-oflimitations defense earlier did not prevent the court of

appeals from considering the issue, which was encompassed within the COA. Pet. App. 11a; see id. at 13a14a. The court further determined that petitioner’s

6

claim was time-barred under Section 2255(f )(1) because

his motion for postconviction relief was filed several

years after his conviction became final. Id. at 7a.

The court of appeals rejected petitioner’s reliance on

the statute-of-limitations exception for motions filed

within one year of the date on which a “new[],” retroactively applicable right to relief “was initially recognized

by the Supreme Court.” 28 U.S.C. 2255(f )(3); see Pet.

App. 8a. The court determined that, “[i]n order to even

arguably invoke” that exception based on the decision

in Johnson, petitioner would have had to demonstrate

that his “ACCA enhancement relies on the residual

clause.” Pet. App. 10a. The court disagreed with petitioner’s assertion “that, when faced with a silent record,

[the court] must assume the district court sentenced the

defendant pursuant to the residual clause,” id. at 15a,

and with out-of-circuit decisions “that purportedly espouse [petitioner’s] requested approach,” id. at 18a.

Rather, the court observed, “federal post-conviction petitioners bear the burden of proof and production under

[Section] 2255,” id. at 15a, and thus “to successfully advance a Johnson * * * claim on collateral review, a

[Section 2255] petitioner bears the burden of establishing that it is more likely than not that he was sentenced

solely pursuant to ACCA’s residual clause,” id. at 21a22a. Because petitioner had “never argued that he was

actually sentenced under the residual clause,” the court

determined that his claim was untimely. Id. at 22a; see

id. at 16a (observing that petitioner “fail[ed] to point to

any evidence suggesting that he was sentenced under

the residual clause”).

b. Judge Torruella dissented in relevant part. Pet.

App. 22a-30a. In his view, the district court’s statement

that petitioner had raised a “Johnson claim” should be

7

treated as a finding that petitioner’s “sentence was enhanced pursuant to the ACCA’s residual clause.” Id. at

23a-24a. Judge Torruella also disagreed with the majority’s decision to consider the timeliness of petitioner’s motion in light of what he perceived to be the

government’s “waiver” of a statute-of-limitations defense in the district court. Id. at 25a-27a. In the absence of a procedural bar, Judge Torruella would have

addressed on the merits whether Maine burglary is

broader than generic burglary under the ACCA’s enumerated offenses clause, a “difficult issue” on which he

expressed no definitive view. Id. at 30a.

ARGUMENT

Petitioner contends (Pet. 28-29) that the court of appeals erred by declining to presume, in the absence of

any evidence or argument from him, that he was sentenced under the ACCA’s residual clause rather than

the enumerated offenses clause and that he was therefore entitled to resentencing in light of Johnson v.

United States, 135 S. Ct. 2551 (2015). The court’s decision is correct and does not conflict with decisions of any

other court of appeals. This Court has recently denied

review of similar claims in other cases. See Westover v.

United States, No. 17-7607 (Apr. 30, 2018); Snyder v.

United States, No. 17-7157 (Apr. 30, 2018). The same

result is appropriate here.

1. A federal prisoner generally may not obtain postconviction relief unless he establishes that his sentence

was “imposed in violation of the Constitution or laws of

the United States.” 28 U.S.C. 2255(a). That stringent

standard reflects the principle that collateral review “is

an extraordinary remedy” that “ ‘will not be allowed to

do service for an appeal.’ ” Bousley v. United States,

523 U.S. 614, 621 (1998) (citation omitted). After the

8

completion of direct review in a criminal case, “a presumption of finality and legality attaches to the conviction and sentence,” Brecht v. Abrahamson, 507 U.S.

619, 633 (1993) (citation omitted), and courts are “entitled to presume” that the defendant’s sentence is lawful,

United States v. Frady, 456 U.S. 152, 164 (1982). That

“presumption of regularity * * * makes it appropriate

to assign a proof burden to the defendant” on collateral

review. Parke v. Raley, 506 U.S. 20, 31 (1992); see

Hawk v. Olson, 326 U.S. 271, 279 (1945) (explaining that

a prisoner necessarily “carries the burden in a collateral

attack on a judgment”).

2. a. The limitations on postconviction relief, and

the prisoner’s burden of proof in that context, preclude

an approach that would grant relief from an ACCA sentence based on Johnson without requiring the prisoner

to show that his sentence was actually the result of

Johnson error. Johnson invalidated the ACCA’s residual clause, but it “d[id] not call into question application

of the [ACCA] to the four enumerated offenses, or the

remainder of the [ACCA’s] definition of a violent felony.” 135 S. Ct. at 2563. Whether viewed as a question

of timeliness, as the court of appeals did (Pet. App. 15a22a), or as a merits question within the context of procedural default, as the district court did (id. at 32a), a

prisoner who fails to prove that his ACCA sentence actually depended on application of the residual clause

fails to carry his burden of demonstrating a constitutional violation that could support collateral relief. Because petitioner failed to make that showing—indeed,

he acknowledges that he “could not meet th[e] burden”

of “proving by a preponderance of the evidence that his

sentence was based on the residual clause,” Pet. 16 (emphasis added)—relief was properly denied.

9

Petitioner’s contrary arguments upend the burden of

proof on collateral review. He contends (Pet. 28-29)

that because the sentencing court might have relied on

the ACCA’s residual clause to classify Maine burglary

as a violent felony, he should be eligible to seek resentencing under Johnson. But that contention ignores the

stringent limitations on postconviction relief. Petitioner cannot obtain such relief unless he proves that

his sentence was “imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. 2255(a).

He also cannot premise the timeliness of a collateral attack on a decision of this Court whose rule cannot be

shown to apply. 28 U.S.C. 2255(f )(3). In the context of

a Johnson claim, those standards require a showing

that petitioner was sentenced under the unconstitutional residual clause. If he was instead sentenced under the enumerated offenses clause, which Johnson explicitly “d[id] not call into question,” 135 S. Ct. at 2563,

then he can neither rely on Johnson to make his claim

timely nor show any fundamental error warranting collateral relief.

b. Indeed, the relevant legal background at the time

of petitioner’s sentencing in 2012 strongly indicates that

he was sentenced under the ACCA’s enumerated offenses clause rather than its residual clause. Petitioner’s prior convictions were for burglary, which is an

enumerated offense. 18 U.S.C. 924(e)(2)(B)(ii). As the

pre-Johnson experience in this Court and the First Circuit demonstrates, the most natural basis for classifying

a burglary conviction as an ACCA violent felony was to

classify it as “burglary” under the enumerated offenses

clause. See, e.g., Taylor v. United States, 495 U.S. 575,

598-599 (1990) (reviewing classification of convictions

for Missouri burglary); United States v. Bennett,

10

469 F.3d 46, 48-50 (1st Cir. 2006) (same for Rhode Island breaking and entering), cert. denied, 549 U.S. 1312

(2007); United States v. Mastera, 435 F.3d 56, 60-61

(1st Cir.) (same for Massachusetts burglary), cert.

denied, 549 U.S. 828 (2006). Analysis under the residual

clause, in contrast, required courts to consider “whether the conduct encompassed by the elements of the offense, in the ordinary case, present[ed] a serious potential risk of injury to another” that was comparable to

the risk posed by the enumerated offenses (including

“burglary”), James v. United States, 550 U.S. 192, 208

(2007), overruled by Johnson, supra, which were themselves “far from clear in respect to the degree of risk

each poses,” Begay v. United States, 553 U.S. 137, 143

(2008). See Johnson, 135 S. Ct. at 2557-2558 (describing

problems in comparing burglary offenses to residual

clause). A determination that a particular crime qualified as “burglary” under the enumerated offenses

clause usually presented a far more straightforward

path to applying the ACCA.

The First Circuit had, in fact, held prior to Johnson

that the Maine burglary statute under which petitioner

was convicted qualified as generic burglary under the

ACCA’s enumerated offenses clause. United States v.

Duquette, 778 F.3d 314, 317-318, cert. denied, 136 S. Ct.

262 (2015). Although Duquette postdated petitioner’s

sentencing, the court noted that its decision was consistent with its earlier treatment of Maine burglary in

United States v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en

banc). See Duquette, 778 F.3d at 318. Giggey held that

Maine burglary did not categorically qualify as the enumerated offense of “burglary of a dwelling” in the Sentencing Guidelines. 551 F.3d at 36. The court noted,

11

however, that “burglary of a dwelling” under the Guidelines was “narrower” than the enumerated offense of

“burglary” in the ACCA, which the court suggested was

“broad enough to include both residential and nonresidential offenses” of the sort prohibited by the Maine

statute. Ibid.

The district court would therefore have had ample

reasons to treat petitioner’s crime as generic ACCA

burglary under the law at the time of sentencing. And

petitioner has identified no authority treating Maine

burglary as a residual-clause offense. Although the

court of appeals in this case did not specifically “hold

that [petitioner] was actually sentenced pursuant to the

enumerated [offenses] clause,” Pet. 27, the lack of such

a finding does not logically suggest that petitioner was

in fact sentenced under the residual clause.

c. Petitioner’s assertion that the court of appeals’

decision arbitrarily conditions relief on the “happenstance of what a judge may have mentioned during a

sentencing,” Pet. 29, is incorrect. As the court of appeals recognized, a prisoner can meet his burden under

Section 2255 to establish that his claim properly relies

on Johnson if precedent indicates that his relevant

prior conviction was more likely than not classified as a

violent felony under the ACCA’s residual clause. Pet.

App. 21a (quoting United States v. Taylor, 873 F.3d 476,

482 (5th Cir. 2017)). A prisoner may show, for example,

that courts had classified his offense as an ACCA predicate under the residual clause, supporting an inference

that the sentencing court did the same. He may also

show that his offense could only have been treated as a

violent felony under the residual clause because, under

the law at the time, it would not have satisfied one of the

other clauses. See, e.g., Sykes v. United States, 564 U.S.

12

1, 8 (2011) (analyzing Indiana felonious vehicle flight),

overruled by Johnson, supra.

It is not arbitrary to require a prisoner to satisfy the

ordinary burden of proof when seeking collateral relief

under Johnson. As the court of appeals observed, “[r]equiring habeas petitioners to 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.” Pet. App. 19a20a. “What would be arbitrary is to treat Johnson

claimants differently than all other [Section] 2255 movants claiming a constitutional violation.” Beeman v.

United States, 871 F.3d 1215, 1224 (11th Cir. 2017) (emphasis added).

d. Petitioner further errs in contending (Pet. 23, 28)

that his claim is supported by Stromberg v. California,

283 U.S. 359 (1931), which invalidated a conviction

based on a general verdict where the jury was instructed on alternative theories of guilt, one of which was unconstitutional. Id. at 367-369. Stromberg involved a direct appeal from a conviction in state court, and thus did

not implicate either Section 2255’s statute of limitations

or the burden imposed on prisoners in the collateral review context. Moreover, unlike a jury’s reasons for returning a guilty verdict, which generally cannot be examined after the verdict is announced, see Fed. R. Evid.

606(b), the basis for a district court’s determination that

a defendant’s prior conviction qualifies as a violent felony under the ACCA can be determined after the fact

by reference to the judge’s own recollection, the record

in the case, the relevant legal background, and an examination of the statute of conviction. And in any event,

even Stromberg errors are subject to harmless-error

13

review, meaning that reversal is not warranted based

on the theoretical possibility that the jury relied on an

improper ground. See Hedgpeth v. Pulido, 555 U.S. 57,

61-62 (2008) (per curiam) (adopting, in the collateral review context, Brecht’s “substantial and injurious effect”

harmless-error standard for Stromberg errors). Stromberg does not support petitioner’s claim that he can satisfy Section 2255’s statute of limitations and obtain collateral relief based on Johnson without ever showing a

Johnson error.

3. Contrary to petitioner’s contention (Pet. 17-25),

the court of appeals’ decision does not directly conflict

with decisions of other circuits.

a. Petitioner’s claim of a circuit conflict relies principally on United States v. Winston, 850 F.3d 677

(4th Cir. 2017), and United States v. Geozos, 870 F.3d

890 (9th Cir. 2017), both of which involved secondor-successive motions under Section 2255. Second-orsuccessive motions are not available unless (inter alia)

a prisoner makes a threshold showing that his claim “relies on a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that

was previously unavailable.” 28 U.S.C. 2244(b)(2)(A);

see 28 U.S.C. 2255(h). The courts in Winston and

Geozos interpreted the phrase “relies on” to require

only a showing that the prisoner’s sentence “may have

been predicated on application of the now-void residual

clause.” Winston, 850 F.3d at 682; see Geozos, 870 F.3d

at 896. Because the sentencing records in those cases

did not indicate “which clause of Section 924(e)(2)(B)”

applied, the courts determined that the prisoners could

make the threshold showing necessary to seek secondor-successive relief. Winston, 850 F.3d at 682; see

Geozos, 870 F.3d at 896-897.

14

Neither Winston nor Geozos directly addressed the

question presented in this case, which involves the timeliness of a first Section 2255 motion under a provision

that requires a prisoner to establish that “the right asserted” is “newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review.” 28 U.S.C. 2255(f )(3). And any tension between

the reasoning of those decisions and the decision below,

see Pet. App. 21a, does not warrant review. For one

thing, the rule adopted in Winston and Geozos derives

from dicta in an Eleventh Circuit decision, In re Chance,

831 F.3d 1335 (2016), that concerned a prisoner’s application for authorization to file a second-or-successive

motion for relief following Johnson. See Winston,

850 F.3d at 682 (citing Chance, 831 F.3d at 1340); see also

Geozos, 870 F.3d at 894-896 nn.4, 6 (citing Winston and

Chance). The Eleventh Circuit has since overruled that

dicta. See Beeman, 871 F.3d at 1228 n.3.

Furthermore, Winston and Geozos interpreted a

threshold statutory requirement for obtaining secondor-successive Section 2255 relief but did not suggest

that a motion for postconviction relief would necessarily

succeed on the merits based solely on the possibility

that a prisoner was sentenced under the residual clause.

See Geozos, 870 F.3d at 896-897 (distinguishing between threshold inquiry and merits determination);

Winston, 850 F.3d at 682-683 (same). Thus, contrary to

petitioner’s contention (Pet. 19-20), neither case directly conflicts with Beeman, which determined that

Section 2255 relief was unavailable on the merits where

the prisoner failed to show by a preponderance of the

evidence that his sentence was based on the residual

clause. 871 F.3d at 1225. Nor do they conflict with

United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017),

15

cert. denied, No. 17-7157 (Apr. 30, 2018), which determined that merits relief is unavailable where the record

and relevant legal background at the time of sentencing

established, “as a matter of historical fact, that [the district court] did not apply the ACCA’s residual clause in

sentencing” the prisoner. Id. at 1128; see Geozos,

870 F.3d at 896 (noting that a prisoner could not make the

necessary threshold showing for second-or-successive relief if “the record before the sentencing court and the relevant background legal environment at the time of sentencing” indicate “that the sentencing court’s ACCA determination did not rest on the residual clause”).

Petitioner identifies no reason to apply Winston and

Geozos outside the narrow circumstance at issue in

those cases. Although petitioner might, on the facts

presented here, have satisfied Section 2244(b)(2)(A)’s

threshold procedural requirements in the Fourth and

Ninth Circuits if he had filed a second-or-successive motion, he cannot show that he would necessarily be entitled to resentencing in those circuits based solely on the

speculative possibility that his original sentence was imposed under the ACCA’s residual clause, especially

when he cannot offer any argument or evidence to that

effect. No court of appeals has expressly endorsed such

a reversal of the normal burden of proof on collateral

review, under which constitutional error would be presumed rather than demonstrated.

b. Petitioner further contends (Pet. 19-21) that, in

contrast to the court of appeals here, Snyder and Beeman held that a Section 2255 motion is timely where it

asserts a Johnson claim, even if the claim ultimately

fails on the merits because the prisoner cannot show

that he was sentenced under the residual clause. That

16

minor disagreement regarding whether a claim like petitioner’s should be dismissed on timeliness or merits

grounds does not warrant review. Although petitioner’s

Section 2255 motion might be considered timely under

Beeman and Snyder, whereas the court of appeals in

this case held that it was not, the ultimate result in all

three cases is consistent—a prisoner cannot obtain collateral relief without satisfying his burden of proving

that he was more likely than not sentenced under the

residual clause.

4. In any event, this case would be a poor vehicle for

reviewing the question presented. Petitioner procedurally defaulted his claim by failing to raise it on direct

appeal. See Pet. App. 33a. A prisoner may not obtain

collateral review of a defaulted claim unless he shows

“cause” for the default and “actual prejudice” from any

error, or that he is “actually innocent.” Bousley, 523 U.S.

at 622 (citations and internal quotation marks omitted).

Petitioner cannot demonstrate “cause” for his default. 1 Johnson applied well-established constitutional

vagueness principles, 135 S. Ct. at 2556-2557, and even

before petitioner’s sentencing in this case, Justice Scalia

had adopted the view that the residual clause was vague.

See Sykes, 564 U.S. at 28-35 (Scalia, J., dissenting);

James, 550 U.S. at 230-231 & n.7 (Scalia, J., dissenting).

On appeal, the government did not specifically challenge whether petitioner had established “cause” for his default and instead defended the district court’s judgment on the ground that petitioner

had failed to establish prejudice. See Gov’t C.A. Br. 13 n.6. The

government argued in the district court that petitioner lacked

cause, however, and thus preserved the issue for this Court’s review. See D. Ct. Doc. 72, at 4-5 (Aug. 29, 2016); see, e.g., Bennett v.

Spear, 520 U.S. 154, 166 (1997) (respondent is entitled to defend the

judgment below on any ground supported by the record).

1

17

Petitioner thus cannot show that a challenge to the residual clause based on vagueness would have been “so

novel” at the time of his direct appeal “that its legal basis

[was] not reasonably available” to him. Bousley, 523 U.S.

at 622 (citation omitted). And although petitioner’s

challenge would not likely have succeeded in light of

Sykes, this Court has long held that “futility cannot constitute cause.” Id. at 623 (citation omitted).

Nor can petitioner show “actual ‘prejudice’ ” from his

default. Bousley, 523 U.S. at 622. Petitioner was not

prejudiced because his Maine burglary convictions were

properly characterized as ACCA predicate offenses.

See Pet. App. 38a-39a. The same is true of the “actual

innocence” exception to procedural default: even assuming that a prisoner could in some circumstances be

“actually innocent” of a noncapital sentence, cf. Dretke

v. Haley, 541 U.S. 386, 391-392 (2004) (declining to resolve that question), petitioner cannot make such a

showing because his prior convictions are violent felonies even without the residual clause. 2

Petitioner’s contrary argument below rested largely on the view

that a burglary statute (like Maine’s) that includes burglary of a

nonpermanent or mobile structure adapted for overnight accommodation is categorically broader than generic burglary. See Pet. C.A.

Br. 19-22. This Court has granted certiorari in United States v.

Stitt, No. 17-765 (Apr. 23, 2018), and United States v. Sims, No.

17-766 (Apr. 23, 2018), to address that issue in the context of similar

statutes from Arkansas and Tennessee. Petitioner has not requested that his petition be held pending a decision in those cases,

however, and doing so is unnecessary. Regardless of how the Court

ultimately resolves the statutory question in Stitt and Sims, it would

not suggest that petitioner’s sentence in 2012 was premised on

constitutional error under Johnson. In any event, the need for

petitioner to prevail on both the question presented and a separate

question about the classification of Maine’s burglary statute (which

would require reconsideration of controlling circuit precedent, see

2

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney

General

WILLIAM A. GLASER

Attorney

MAY 2018

Duquette, 778 F.3d at 317-318) illustrates that this is an unsuitable

vehicle for review of the question presented.