Petition for Writ of Certiorari — Michael Collins, Petitioner v. United States

Index to Appendix

Judgment of the United States Court of Appeals for the First Circuit

In Collins v. United States

(August 7, 2019) ...................................................................................... 1

Memorandum and Order of the United States District Court for

the District of Massachusetts Denying Certificate of Appealability

(April 11, 2019) ...................................................................................... 3

Memorandum and Order of the United States District Court for

the District of Massachusetts

(January 24, 2019) ................................................................................. 14

Case: 19-1338

Document: 00117473811

Page : 1

Date Filed : 08/07/2019

Entry ID : 6273430

United States Court of Appeals

For the First Circuit

No. 19-1338

MICHAEL COLLINS,

Petitioner, Appellant,

V.

UNITED STATES,

Respondent, Appellee.

Before

Torruella, Thompson and Barron,

Circuit Judges.

JUDGMENT

Entered: August 7, 2019

Petitioner Michael Collins seeks a certificate of appealability ("COA'') in relation to the

district court's denial of his 28 U.S.C. § 2255 motion pressing challenges to his armed career

criminal status pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II). After

careful consideration, we conclude that the district court's denial of Collins' § 2255 claim(s) was

neither debatable nor wrong and that Collins "has [not] made a substantial showing of the denial

of a constitutional right." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(COA standard). As the district court concluded, and as Collins concedes, his claims run afoul of

recent precedent from this comi. See United States v. Edwards, 857 F.3d 420, 421-22 (1st Cir.),

ceti. denied, 138 S. Ct. 283 (2017) (Massachusetts armed assault with intent to murder

categorically qt\alifies as "violent felony" under ACCA force clause); United States v. Hudson,

823 F.3d 11, 16 (1st Cir. 2016), ce1i. denied, 137 S. Ct. 620 (2017) (same re Massachusetts assault

with a dangerous weapon); United States v. Whindleton, 797 F.3d 105, 111-16 (1st Cir. 2015),

cert. dismissed, 137 S. Ct. 23 (2016), and cert. denied, 137 S. Ct. 179 (2016) (same). The district

court was bound by those decisions, and subsequent panels of this comi are bound by those

decisions "in the absence of supervening authority sufficient to warrant disregard of established

precedent," Peralta v. Holder, 567 F.3d 31, 35 (1st Cir. 2009) (internal quotations omitted). With

his counseled COA application, Collins does not identify any "supervening authority" legitimately

calling into question the decisions cited above. Moreover, to the extent Collins suggests that the

grant of a COA is a prerequisite for fmiher review by the en bane comi or the Supreme Court, he

APPENDIX

001

Case : 19-1338

Document: 00117473811

Page: 2

Date Filed : 08/07/2019

Entry ID : 6273430

is mistaken. See, e.g .. Welch v. United States, 136 S. Ct. 1257 (2016) (reviewing denial of a COA

in a case that happened also to center about Johnson II); see also Fed. R. App. P. 35 (rehearing en

bane may be sought as to "an appeal or other proceeding") (emphasis added).

Accordingly, Collins' application for a certificate of appealability is DENIED.

remaining pending motions are moot. The appeal is hereby TERMINATED.

Any

By the Court:

Maria R. Hamilton, Clerk

cc:

Elizabeth Prevett

Michael Collins

Cynthia A. Young

Dustin Ming Chao

APPENDIX

002

Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 1 of 11

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHAEL COLLINS,

CIVIL ACTION NO.

16-11363-DPW

Petitioner,

v.

CRIMINAL ACTION NO.

13-10191-DPW

UNITED STATES,

Respondent.

MEMORANDUM AND ORDER

April 11, 2019

I . BACKGROUND

The Petitioner in this federal habeas corpus proceeding,

Michael Collins, was charged in a one-count indictment with

being a felon in possession of a firearm,

U.S.C. § 922(g) (1).

in violation of 18

He pled guilty to that offense and was

sentenced as an armed career criminal to the mandatory minimum

sentence of 15 years incarceration.

See Collins v. United

States, 354 F. Supp. 3d 105, 109 (D. Mass. 2019).

Mr. Collins thereafter initiated this habeas corpus

proceeding by filing a motion to correct his sentence under 28

U.S.C. § 2255 on the basis that he lacked the requisite three

predicate offenses to qualify as an armed career criminal under

the Armed Career Criminal Act ("ACCA").

In particular, Mr.

Collins challenged the classification of his convictions under

Massachusetts law for larceny from the person, assault and

APPENDIX

003

Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 2 of 11

battery with a dangerous weapon, assault with a dangerous

weapon, and armed assault with intent to kill as "violent

felonies" under the force clause of ACCA.

§

924(e) (2) (B).

See 18 U.S.C.

On January 24, 2019, I denied his motion,

concluding that under binding First Circuit precedent, three of

Mr. Collins's prior convictions qualify as "violent felonies,"

and that Mr. Collins was properly sentenced under the ACCA

sentencing enhancement.

Collins, 354 F. Supp. 3d at 113-15.

In

particular, I held that armed assault with intent to kill and

assault with a dangerous weapon were categorically "violent

felonies" and that his three separate convictions for those

crimes qualified as predicate offenses under ACCA. 1

Accordingly,

I declined to reformulate Mr. Collins's sentence.

Mr. Collins has now filed a notice of appeal of my

dismissal of his habeas petition, 2 [Dkt. No. 56], and seeks a

certificate of appealability ("COA")

from this court.

[Dkt. No.

Mr. Collins also has a prior conviction for Breaking and

Entering at Night, though this conviction was not listed as one

of his predicates in his Presentence Report.

See Collins v.

United States, 354 F. Supp. 3d 105, 116 (D. Mass. 2019).

Nevertheless, in this habeas proceeding, I considered whether

that conviction would qualify as an ACCA predicate offense and

held that it would because it falls within the common law

definition of burglary.

Id. (citing Taylor v. United States,

495 U.S. 575, 598 (1990) and United States v. Stitt, --U.S.--,

139 S. Ct. 399, 405-06 (2018)).

Mr. Collins apparently does not

seek to challenge this holding in his habeas appeal.

2 His notice of appeal is to be treated as an application to the

First Circuit for a certificate of appealability ("COA").

Slack

v. McDaniel, 529 U.S. 473, 483 (2000).

1

2

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004

Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 3 of 11

55].

Declining his invitation to declare that the First Circuit

precedent binding upon me is questionable, I conclude that his

request for a COA from this court must be denied.

II. DISCUSSION

Under federal habeas corpus law, "[a]n appeal may be taken

to the court of appeals from the order entered on the motion

[under 28 U.S.C. § 2255] as from a final judgment on application

for a writ of habeas corpus."

28 U.S.C. § 2255(d).

The 1996

amendments to the Anti-Terrorism and Effective Death Penalty Act

("AEDPA") added the condition that a prisoner has a right of

appeal only if "a circuit justice or judge issues a certificate

of appealability."

P. 22(b) . 3

28 U.S.C.

§

2253(c) (1);

see also FED. R. APP.

"[A] certificate of appealability may issue

only if the applicant has made a substantial showing of the

denial of a constitutional right."

28 U.S.C. § 2253(2).

Despite the reference in the statute to "a circuit justice or

judge," the First Circuit has interpreted this provision to give

district judges the authority to issue COAs.

Grant-Chase v.

Commissioner, New Hampshire Dept. of Corrections, 145 F.3d 431,

436 ( 1st Cir. 1998) (" [L] i tigants in possession of a COA as to

an issue from a district judge need not apply to this court for

issuance of a second certificate on that issue; they need only

present this court with a copy of the district court order

granting a certificate of appealability.").

The First Circuit's

Local Rules provide that "[i]n this Circuit, ordinarily neither

the court nor a judge thereof will act on a request for a

certificate of appealability if the district judge who refused

the writ is available and has not ruled first." First Circuit

Rule 22.0(a).

3

3

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Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 4 of 11

In interpreting this provision, the Supreme Court has held

that a prisoner is entitled to a COA if he can show "that

reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a

different manner or that the issues presented were 'adequate to

deserve encouragement to proceed further.'"

529 U.S. 473, 484 (2000).

Slack v. McDaniel,

Under this standard, "[a] prisoner

seeking a COA must prove 'something more than the absence of

frivolity' or the existence of mere 'good faith'

on his or her

part."

(2003)

Miller-El v. Cockrell, 537 U.S. 322, 338

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)

(citing

("It is generally

agreed that probable cause requires something more than the

We agree with the weight of opinion

absence of frivolity

in the Courts of Appeals that a certificate of probable cause

requires petitioner to make a substantial showing of the denial

of a federal right." (internal quotations and citations

omitted))).

I conclude that Mr. Collins has not made such a showing in

this Court.

His arguments with respect to his convictions for

assault with a dangerous weapon and assault with intent to kill,

as he acknowledges, are foreclosed by First Circuit precedent

directly on point.

The First Circuit has explicitly held that

convictions for both offenses qualify as predicate offenses for

the purposes of ACCA.

See generally United States v.

4

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Whindleton,

797 F.3d 105 (1st Cir. 2015)

(holding that a prior

conviction for assault with a dangerous weapon under

Massachusetts law qualified as a "violent felony" under ACCA);

United States v. Edwards, 857 F.3d 420 (1st Cir. 2017)

(holding

that Massachusetts armed assault with intent to murder

constituted a "violent felony.

Mr. Collins argues that reasonable jurists could disagree

with the First Circuit's classifications of assault with a

dangerous weapon and armed assault with intent to kill as

"violent felonies" under the force clause of ACCA.

Even

assuming that there could be disagreement with this First

Circuit precedent, as a subordinate judge subject to First

Circuit appellate review, I am duty bound faithfully to apply

the decisions of the First Circuit.

v.

Paradigm Biodevices, Inc.,

Mass. 2009)

Cf. Vertex Surgical, Inc.

648 F. Supp. 2d 226, 231 n. 3 (D.

(" [U] nless and until the Supreme Judicial Court has

addressed a pertinent state law issue, a federal district court

is bound by First Circuit precedent." (citing Esquire, Inc. v.

Esquire Slipper Mfg.

Co., 243 F.2d 540, 544

Winter Panel Corp v. Reichhold Chems., Inc.,

(1st Cir. 1957) and

823 F. Supp. 963,

969 (D. Mass. 1993))); see also Beazer v. United States, -- F.

Supp. 3d --, 2019 WL 470205 at *4

(same); United States v. Turner,

(D. Mass. Feb. 6, 2019)

2014 WL 3109864 at *2 (D. Mass.

5

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Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 6 of 11

July 7, 2014)

( "This Court is bound by the First Circuit's

ruling.") .

The First Circuit for its part appears to consider itself

bound by panel precedent in the absence of en bane

reconsideration supervening Supreme Court development, or

statutory abrogation.

The First Circuit has consistently

emphasized that "a rule of law by a panel of [the First Circuit]

is binding upon subsequent panels."

Whindleton, 797 F.3d at 113

(citing Arebico Community Health Care, Inc. v. Commonwealth of

Puerto Rico, 270 F.3d 17, 22

(1st Cir. 2001) ); see also United

States v. Rodriguez-Pacheco, 475 F.3d 434, 441

(1st Cir. 2007)

("A panel of this court is normally bound to follow an earlier

panel decision that is closely on point, unless an exception

exists to the principles of stare decisis.").

Though the First

Circuit may decide that intervening case law from other courts

around the country "offer[s] a sound reason for believing that

the former panel, in light of fresh developments, would change

its collective mind," Rodriguez-Pacheco, 475 F.3d at 442, the

decision to do so rests with the First Circuit alone. 4

I do not

The First Circuit also recognizes an exception to stare

decisis, which "applies when an existing panel decision is

undermined by controlling authority, subsequently announced,

such as an opinion of the Supreme Court, an en bane opinion of

the circuit court, or a statutory overruling." United States v.

Rodriguez-Pacheco, 475 F.3d 434, 441 (1st Cir. 2007). Mr.

Collins points to no authority from the Supreme Court, the

Supreme Judicial Court of Massachusetts, or the First Circuit

4

6

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Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 7 of 11

believe that, as a judge of a subordinate court obligated

to follow circuit precedent, I should require

indirectly -

however

the First Circuit to reexamine a previous ruling by

declining to give full weight to its existing precedent directly

on point. 5

The First Circuit precedent binding upon me evidences

itself which would undermine the prior rulings relied upon here.

Nor is there any statutory development calling the panel

precedent into question.

Indeed, with one exception Commonwealth v. Lednum, 916 N.E.2d 416 (Mass. App. Ct. 2009) the Massachusetts state cases on which Mr. Collins relies have

all been explicitly considered by the First Circuit.

See

generally [Dkt. No. 55 passim]; United States v. Edwards, 857

F.3d 420 (1st Cir. 2017); United States v. Whindleton, 797 F.3d

105 (1st Cir. 2015).

There is no reason to believe that further

explicit consideration of a prior ruling by the intermediate

Massachusetts appellate court would undermine current First

Circuit law.

Just as the First Circuit has consistently held that it

ordinarily is bound by its prior decisions, the Supreme Court

has firmly held that its decisions can only be overruled by a

change in the statute, a constitutional amendment, or a

subsequent decision by the Supreme Court itself.

See generally

Agostini v. Felton, 521 U.S. 203, 235-36 (1996); Johnson v.

United States, 135 S. Ct. 2551, 2563 (2015).

5 I recognize that, as a practical matter,

the issuance of a

Certificate of Appealability on a reasoned basis by a District

Court calling into question binding precedent - assuming the

underlying judgment has not been displaced - does not

necessarily require the First Circuit to reexamine its prior

rulings.

Appellate courts developing protocols for treatment of

Certificates of Appealability have approached the issue

pragmatically.

The Supreme Court has observed that:

[t]he COA process screens out issues unworthy of judicial

time and attention and ensures that frivolous claims are

not assigned to merits panels. Once a judge has made the

determination that a COA is warranted and resources are

deployed in briefing and argument, however, the COA has

fulfilled that gatekeeping function. Even if additional

screening of already-issued COAs for § 2253 (c) (3)

defects could further winnow the cases before the courts

7

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Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 8 of 11

full consideration of the issues Mr. Collins seeks to raise on

appeal.

I am aware of no additional issues that have not been

subject to their consideration. 6

The Supreme Court has been clear that "[i]t is this Court's

of appeals, that would not outweigh the costs of further

delay from the extra layer of review.

Gonzalez v.

Thaler,

565 U.S. 134, 145 (2012).

Although the First Circuit does not appear to have

addressed the question in a reported opinion, other

Circuits have.

They have consistently affirmed the right

of an appellate court to review and vacate an improvidently

granted COA while generally allowing a case in which the

District Court issued a COA to proceed on appeal in the

ordinary course unless considerations of judicial economy

counsel otherwise.

See, e.g., Phelps v. Alameda, 366 F.3d

722, 728 (9th Cir. 2004); Ramunno v. United States, 264

F.3d 723, 725 (7th Cir. 2001); Soto v. United States, 185

F.3d 48, 52 (2d Cir. 1999); Tiedeman v. Benson, 122 F.3d

518, 522 (8th Cir. 1997).

Consequently, it may be a matter of discretion rather

than an obligation to judicial hierarchy for a District

Judge to decline to precipitate reconsideration of binding

circuit precedent by issuing a COA.

In any event, I view

such an act to be supererogatory when any issue on which I

might otherwise allow a COA has been fully considered by

the Court of Appeals and there has been nothing new that

might call into question the prior consideration of the

issue by the First Circuit.

6 I note that Mr.

Collins now appears to challenge current First

Circuit precedent by arguing in part that, under Massachusetts

law, an individual may be convicted for assault with a dangerous

weapon, or assault with intent to kill, when the individual

uncaps a gas line in a home, [Dkt. No. 55 at 5] or attempts to

poison a person.

[Id. at 6].

However, the Supreme Court of the

United States has held that these actions constitute "physical

force," United States v. Castleman, 134 S. Ct. 1405, 1415

(2014), and the First Circuit has previously considered the

argument and suggested that those actions constitute "violent

force" under ACCA.

Edwards, 857 F.3d at 425-27 (1st Cir. 2017)

8

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Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 9 of 11

prerogative alone to overrule one of its precedents.

[The

Court's] decisions remain binding precedent until [it] see[s]

fit to reconsider them, regardless of whether subsequent cases

have raised doubts about their continuing validity."

Oklahoma, 137 S. Ct. 1, 2 (2016)

Bosse v.

(per curiam); see also

Rodriguez de Quijas v. Shearson/American Express, Inc.,

477,

484

(1989)

490 U.S.

("[T]he Court of Appeals should follow the case

which directly controls, leaving this Court the prerogative of

overruling its own decisions.").

The First Circuit similarly has gently but firmly made

clear that "[t]he doctrine of stare decisis renders the ruling

of law in a case binding in future cases before .

courts owing obedience to the decision."

of Massachusetts,

original) . 7

. other

Gately v. Commonwealth

2 F. 3d 1221, 122 6 ( 1st Cir. 1993) ( emphasis in

It should go without saying I am one of those courts

owing obedience.

Consequently, given the existence of binding First Circuit

precedent in this area, I cannot say that "reasonable jurists

would find the district court's assessment of the constitutional

Other circuits have been more direct about the duty of

obedience owed by district courts.

"[D]istrict courts are, of

course, bound by the law of their own circuit, and are not to

resolve splits between circuits no matter how egregiously in

error they may feel their own circuit to be." Zuniga v. United

Can Co., 812 F. 2d 443, 450 ( 9th Cir. 1987) ( internal quotations

omitted) [MacDonald, J.]; see also, e.g., Hopkins v. Price

Waterhouse, 921 F.2d 967, 974-75 (D.C. Cir. 1990).

7

9

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Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 10 of 11

claims debatable or wrong."

supplied).

Slack, 529 U.S. at 484

(emphasis

Nor can I conclude that Mr. Collins has made a

substantial showing that he has been denied a constitutional

right.

Id. at 483; see also United States v. Rodriguez, 321 F.

Supp. 3d 256, 259 (D. Mass. 2018).

The First Circuit itself, of course, may accept an

invitation by Mr. Collins to revisit its precedent and

independently issue a COA to hear his claims in this matter.

In

that connection, it might, for example, conclude that "the

issues presented are adequate to deserve encouragement to

proceed further."

U.S. at 484).

Miller-El,

537 U.S. at 327

(citing Slack, 529

However, I believe it would be beyond the proper

exercise of my authority as a judge of a subordinate court to do

so, 8 particularly when, as here, the First Circuit has fully

considered all the issues which the Petitioner urges me to put

in contention by issuing a Certificate of Appealability.

I recognize that District Judges in the Northern District of

Florida have granted Certificates of Appealability when they

believe the law of the circuit should be reconsidered en bane or

changed by the Supreme Court.

See United States v. Anthony, No.

13-103, 2017 U.S.Dist. LEXIS 94843, at *5 (N.D.Fla. June 17,

2017) [Hinkle, J.]; United States v. Upshaw, No. 02-3, 2017 WL

5709563, at *l (N.D.Fla. November 27, 2017) [Walker, J.].

With

respect, I do not believe the writ of a District Court

justifiably extends in this setting, see supra note 5, as far as

Judges Hinkle and Walker apparently do, even assuming arguendo

that, left to my own devices - unconstrained by binding

precedent - I might reach a different result than the First

Circuit.

Needless to say, I decline to express a view one way

or the other whether that assumption is valid in this case.

8

10

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Case 1:13-cr-10191-DPW Document 59 Filed 04/11/19 Page 11 of 11

III. CONCLUSION

For the foregoing reasons, the request for a Certificate of

Appealability from this court regarding the questions whether

assault with a dangerous weapon and assault with intent to kill

under Massachusetts law are violent felonies

[Dkt. No. 55] is

DENIED.

/s/ Doug1as P. Woodl.ock

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

11

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Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 1 of 23

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHAEL COLLINS,

Petitioner,

v.

CIVIL ACTION NO.

16-11363-DPW

CRIMINAL ACTION NO.

13-10191-DPW

UNITED STATES,

Respondent

MEMORANDUM AND ORDER

January 24, 2019

This matter has its origin in the conviction of the

Petitioner, Michael Collins, for being a Felon in Possession of

a Firearm, in violation of 18 U.S.C.

§

922 (g) (1).

On January

23, 2014, Mr. Collins was sentenced to 15 years in prison as an

armed career criminal subject to the sentencing enhancement

imposed by the Armed Career Criminal Act ("ACCA").

Mr. Collins

filed the present petition for habeas corpus to vacate and

correct his sentence under 28 U.S.C. § 2255 in 2016, arguing

that, in light of Johnson v. United States, 135 S. Ct. 2551

(2015)

("Johnson II"), he was not properly characterized as an

armed career criminal subject to the ACCA's enhancement.

Case

law in the First Circuit since Johnson II undermines the

contentions which are offered in the petition.

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Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 2 of 23

I . BACKGROUND

A.

Factuai Background.

On June 25, 2013, Mr. Collins was charged in a one count

indictment as a felon in possession of a firearm (a Norinco,

Model SKS, 7.62 millimeter rifle), in violation of 18 U.S.C.

§

922 (g) (1).

Both the Presentence Investigation Report ("PSR") prepared

by the Probation Office and the Government's Sentencing

Memorandum, stated that Mr. Collins had at least three prior

state convictions and therefore qualified as an Armed Career

Criminal.

In particular, the PSR listed the following

convictions which could be considered predicate offenses for the

purpose of the ACCA sentencing enhancement:

(1)

March 6, 1990 conviction in Boston Municipal Court for

Larceny from the Person and Assault and Battery by a

Dangerous Weapon,

(2)

[ PSR <[ 32];

June 18, 1992 convictions in Suffolk Superior Court

for Armed Assault with Intent to Kill and Assault and

Battery by a Dangerous Weapon,

(3)

[ PSR <[ 35] ;

July 2, 1992 conviction in Middlesex Superior Court

for Assault and Battery by a Dangerous Weapon,

[PSR

<[ 36];

2

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015

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 3 of 23

(4)

August 12, 1992 convictions in Cambridge District

Court for Assault and Battery by a Dangerous Weapon, 1

[PSR <JI 34];

(5)

October 15, 2001 convictions in Suffolk Superior Court

for Armed Robbery, Armed Assault with Intent to Rob,

Kidnapping, and Assault with a Dangerous Weapon,

<JI

(6)

[PSR

39]; and,

October 16, 2008 conviction in West Roxbury District

Court for Assault with a Dangerous Weapon. 2

<JI

[PSR

4 7] .

In addition, the Government's Sentencing Memorandum

referenced a July 27, 2005 conviction in Somerville District

Court for Breaking and Entering a Building in the Nighttime as a

predicate offense, although the PSR did not include this

particular conviction in its list of predicate offenses.

On January 17, 2014, Mr. Collins filed his own sentencing

memorandum, and objected generally to his classification as an

Armed Career Criminal because his prior convictions were not

charged, admitted to, or proven by the Government.

I rejected

The defendant was also convicted on August 12, 1992 of

malicious destruction of property.

There has never been a

contention in this case that this offense can be an ACCA

predicate.

2 The defendant also had convictions on October 16,

2008 for

possession of burglaries instruments and carrying dangerous

weapons.

There has never been a contention in this case that

either of those offenses can be an ACCA predicate.

1

3

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Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 4 of 23

that argument and sentenced him as an armed career criminal to

the mandatory minimum sentence required by the ACCA of 15 years

incarceration.

He did not appeal.

If Mr. Collins had not been classified as an armed career

criminal, he would have been subject to, at most, ten years

incarceration - the statutory maximum penalty for a violation of

18 U.S.C. § 922 in the absence of the ACCA sentencing

enhancement.

B.

See 18 U.S.C. §§ 922 (g) (1), 924 (a) (2).

The Current Legal. Context

The ACCA imposes a mandatory minimum sentence of 15 years

incarceration for "[any] person who violates section 922(g)

. and has three previous convictions by any court .

for

a violent felony or a serious drug offense, or both, committed

on occasions different from one another."

§ 924(e) (1).

18 U.S.C.

The statute defines a "violent felony" as any

felony that either "(i) has as an element the use, attempted

use, or threated use of physical force against the person of

another; or (ii) is burglary, arson, or extortion, involves the

use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another."

U.S.C.

§

18

924 (e) (2) (B).

In 2015,

the Supreme Court struck down part of the second

clause of 18 U.S.C.

§

924 (e) (2) (B), the so-called residual clause,

as unconstitutionally vague.

Johnson v. United States, 135 S. Ct.

4

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017

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 5 of 23

2551, 2557 (2015)

held,

(Johnson II).

"[T] he residual clause," the Court

"leaves grave uncertainty about how to estimate the risk

posed by a crime" because it "ties the judicial assessment of risk

to a

judicially imagined

'ordinary case'

of a crime."

Id.

It

also "leaves uncertainty about how much risk it takes for a crime

to qualify as a violent felony," especially because the residual

clause required judges to apply "an imprecise

risk'

'serious potential

standard" to "a judge-imagined abstraction."

However,

Id.

at 2558.

the Court left in place the first clause of ACCA,

as the force

classifies

clause,

"burglary,

and the portion of the second clause that

arson,

or

extortion"

or

any

"involves the use of explosives" as violent felonies

statute.

18 U.S.C.

§

known

crime

that

under the

924 (e) (2) (B)

The following year, the Supreme Court held that "Johnson

[II] announced a substantive rule that has retroactive effect in

cases on collateral review."

1257, 1268

(2016).

Welch v. United States, 136 S. Ct.

A few months later, Mr. Collins petitioned

through the motion now before me to have me vacate and correct

his sentence pursuant to 28 U.S.C. § 2255.

C.

The Instant Petition

Mr. Collins now contends in his petition that he was

improperly characterized as an armed career criminal under 18

U.S.C. § 924(e) because certain predicate convictions may not

properly be counted in reaching the threshold for Armed Career

5

APPENDIX

018

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 6 of 23

Criminal status.

In particular, he argues that his convictions

for larceny from the person, assault and battery with a

dangerous weapon, assault with a dangerous weapon, 3 and armed

assault with intent to kill are not categorically violent

felonies under the force clause of ACCA.

He also argues, albeit

in a footnote, that his conviction for breaking and entering was

not a violent felony under the force clause, observing correctly

that neither the PSR nor I relied on that conviction during his

original sentencing when determining that he was an armed career

criminal.

II. PROCEDURAL DEFAULT

Although not raised in the Government's opposition to Mr.

Collins's petition, which focuses on the merits, I consider it

important to address a threshold question: whether Mr. Collins

claims are procedurally barred. 4

Although Mr. Collins did object

Mr. Collins acknowledges that the First Circuit has held that

assault with a dangerous weapon is categorically a violent

felony under the force clause.

See generally United States v.

Whindleton, 797 F.3d 105 (1st Cir. 2015).

He nevertheless

challenges this conviction as a predicate offense to preserve

the issue, presumably for appeal, on the basis that the First

Circuit's reasoning was flawed.

4 In this connection,

I also address whether the petition here is

time-barred.

Federal law imposes a 1-year period of limitation

for all claims for habeas relief, which runs from the latest of:

(1) the date on which the judgment of conviction becomes

final; (2) the date on which the impediment to making a

motion created by governmental action.

. is removed;

(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

3

6

APPENDIX

019

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 7 of 23

to his classification as a career offender prior to his

sentencing, he did not, at that time, raise any of the arguments

he raises now in his request for habeas relief; nor did Mr.

Collins seek direct review of his sentence.

Consequently, his

claims may be considered procedurally defaulted.

Wainwright v. Sykes,

States,

523 U.S. 614,

Seer e.g.,

433 U.S. 72, 81 (1977); Bousley v. United

622

(1998).

As a general matter, "procedural default is an affirmative

defense," and must be raised and pled by the Government to bar a

habeas petition.

Oakes v. United States,

400 F.3d 92, 98

(1st

Cir. 2005); see also Trest v. Cain, 522 U.S. 87, 89 (1997)

("[P]rocedural default is normally a defense that the State is

obligated to raise and preserve if it is not to lose the right

to assert the defense thereafter.")

omitted).

(internal quotations

Since the Government has chosen not to raise the

issue of procedural default in its response to the petition for

habeas relief, the issue appears to have been waived.

retroactively applicable to cases on collateral review; or

(4) the date on which facts supporting the claim.

could have been discovered.

28 u.s.c. § 2255.

The Supreme Court recognized the right asserted here in

Johnson v. United States, 135 S. Ct. 2551 (2015) on June 26,

2015, and made the right retroactively applicable on collateral

review in Welch v. United States, 136 S. Ct. 1257 (2016), on

April 18, 2016.

Mr. Collins filed his petition for habeas

relief on June 24, 2016.

Consequently, his petition was filed

within the 1-year limitations period and is timely.

7

APPENDIX

020

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 8 of 23

Nevertheless, I may still consider procedural default sua

sponte, even if I may not "bypass, override, or excuse [the

government's] deliberate waiver" of an affirmative defense.

Wood v. Milyard,

F.3d at 97

556 U.S. 463, 466 (2012); see also Oakes, 400

("[W]e hold that a district court has the discretion,

in a section 2255 case, to raise questions of procedural default

sua sponte, even when the government has filed a reply and

eschewed any reference to the defense.").

Had the Government

here raised procedural default in its response to the present

petition, I would have been barred from hearing the merits of

Mr. Collins's claim unless he could demonstrate both cause for

the default and actual prejudice.

Seer e.g., Wainwright,

433

U.S. at 81; Bousley, 523 U.S. at 622.

A petitioner may show cause by demonstrating that his claim

is "so novel that its legal basis is not reasonably available to

counsel" at the time of conviction.

Bousley, 523 U.S. at 622.

However, this standard does not mean that the claim was viewed

as futile, or otherwise "was unacceptable to that particular

court at that particular time."

Id. at 623.

Instead, for a

constitutional claim to be "new," it must "represent[ ] a clear

break with the past."

Reed v. Ross, 468 U.S. 1, 17

(1984).

It

may arise when the Supreme Court "explicitly overrule[s] one of

[its] precedents," when a decision "overturn[s] a longstanding

and widespread practice to which [the Supreme Court] has not

8

APPENDIX

021

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 9 of 23

spoken, but which a near-unanimous body of lower court authority

has expressly approved," or when a decision of the Supreme Court

"disapprove[s) a practice that [the Supreme Court] arguably has

sanctioned in prior cases."

Id.

The Court's holding in Johnson II clearly satisfies this

standard.

When Mr. Collins was sentenced in 2014, "the Supreme

Court's decisions in James [v. United States, 550 U.S. 192

(2007)) and Sykes [v. United States,

still good law.

564 U.S. 1 (2011)) were

Both those decisions had rejected challenges to

the ACCA's residual clause on constitutional vagueness grounds."

Lassend v. United States,

898 F.3d 115, 122 (1st Cir. 2018).

Johnson II "expressly overruled James and Sykes in relation to

the ACCA," meaning it signaled a "clear break from the past."

Id. at 17.

Consequently, the ACCA claims raised in this

petition were not reasonably available to Mr. Collins at the

time of his sentencing, and he has therefore demonstrated

"cause" for any procedural default regarding this issue.

Mr. Collins must also show that he suffered "actual

prejudice" to overcome procedural default.

If the prior

convictions Mr. Collins is challenging are not violent felonies

under the force clause of ACCA, "he can argue actual prejudice

because his sentence was undoubtedly influenced by the

determination that he had qualifying ACCA predicates" and should

9

APPENDIX

022

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 10 of 23

be sentenced as a career offender.

Lassend, 898 F.3d at 123. 5

In other words, if Mr. Collins succeeds on the merits of his

habeas petition, he undoubtedly suffered actual prejudice and is

entitled to relief.

See Lassend, 898 F.3d at 123 ("[T]he

prejudice inquiry dovetails with the merits inquiry.").

I now turn to consider Mr. Collins's claims on the merits,

recognizing that this consideration addresses and will

effectively resolve the prejudice dimension of the procedural

default issue.

III. THE MERITS

A.

Predicate 0££enses Cha11enged in the Petition

In his petition, Mr. Collins argues that Larceny from the

Person, Armed Assault with Intent to Kill, Assault with a

Dangerous Weapon ("ADW"), 6 and Assault and Battery by a Dangerous

Mr. Collins does not argue that his October 15, 2001

convictions for armed robbery, armed assault with intent to rob,

and kidnapping, [PSR

39), do not remain violent felonies postJohnson II.

Since all three of these convictions arose out of

the same set of factual circumstances, they were not "committed

on occasions different from one another." 18 U.S.C.

§ 924(e) (1).

Consequently, these three convictions cannot be

counted together to trigger the ACCA sentencing enhancement

because they may be counted to include only one conviction for

ACCA purposes.

6 Mr.

Collins has two convictions for Assault with a Dangerous

Weapon: one on October 15, 2001, which was accompanied by

convictions for armed robbery, kidnapping, and armed assault

with intent to rob, [PSR

39], and one on October 16, 2008,

which was accompanied by convictions for possession of burgled

instruments and carrying dangerous weapons.

[PSR

47].

5

10

APPENDIX

023

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 11 of 23

Weapon ("ABDW"), 7 as defined by Massachusetts law, are not

categorically violent felonies under the force clause of the

ACCA.

He also argues in a footnote that Breaking and Entering

at Night under Massachusetts law is not an ACCA predicate

offense.

I will address each challenged offense in turn.

1.

Larceny from the Person

On March 6, 1990, Mr. Collins was convicted of larceny from

the person in Boston Municipal Court, and I considered this

conviction as a predicate offense under the now inapplicable

residual clause for his subsequent classification as an armed

career criminal.

[PSR 11 32, 50).

Though the Government does

not argue that larceny from the person is a violent felony under

the force clause of ACCA, because Mr. Collins does challenge

this conviction in his petition for habeas relief, I will

address the question.

Mr. Collins has four separate convictions for Assault and

Battery by a Dangerous Weapon ("ABDW"): one on March 6, 1990,

[PSR 1 32), one on August 12, 1992, [[PSR 1 34), one on June 18,

1992, [PSR 1 35), and one on July 2, 1992 [PSR 1 36).

The March

6, 1990 ABDW conviction was accompanied by the conviction for

Larceny from the Person, and will only qualify as a predicate

offense if Larceny from the Person is not a violent felony under

ACCA.

[PSR 1 32). Similarly, the June 18, 1992 conviction was

accompanied by a conviction for Armed Assault with Intent to

Kill, and will only qualify as a predicate offense if Armed

Assault with Intent to Kill is not a predicate offense.

[PSR

1 35 J •

7

11

APPENDIX

024

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 12 of 23

Under Massachusetts law, an individual is guilty of larceny

from the person if he "commits larceny by stealing from the

person of another."

M.G.L. c. 266 § 25.

The Supreme Judicial

Court of Massachusetts ("SJC") has interpreted this provision to

incorporate and expand the common law of larceny.

v. Jones,

283 N.E.2d 840, 843 n. 2 (Mass. 1972).

Commonwealth

As at common

law, larceny from the person requires "the taking and carrying

away of the personal property of another against his will with

the intent to steal."

omitted).

Id.

(internal citations and quotations

It specifically does not require proof of force of

violence.

Consequently, "[t]he use of physical force is not an

element of the offense," meaning larceny from the person is not

categorically a crime of violence under the force clause of the

ACCA.

United States v. Rodriguez,

659 F.3d 117, 118 (1st Cir.

2011).

It could only serve as an ACCA predicate offense under

the residual clause, which has, of course, been stuck down.

Id.

at 118-19.

Larceny from the person is therefore not a violent felony

and cannot serve as an ACCA predicate offense.

2.

Assault with Intent to Kill

Mr. Collins challenges the classification of his June 18,

12

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025

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 13 of 23

1992 conviction for Armed Assault with Intent to Kill 8 as a

predicate offense.

[PSR

35].

As a general matter,

Massachusetts law recognizes two theories of assault: "attempted

battery and threatened battery."

Commonwealth v. Porro, 939

N.E.2d 1157, 1163 (Mass. 2010).

"A conviction of assault under

a theory of attempted battery requires the prosecution to prove

that the defendant intended to commit a battery, took some overt

step toward accomplishing that intended battery, and came

reasonably close to doing so."

Id.

In this context, the victim

need not be aware of the attempt, and the battery need involve

nothing more than an offensive touch.

Id.

In contrast, "[a]

conviction of assault under a theory of threatened battery

requires the prosecution to prove that the defendant engaged in

conduct that a reasonable person would recognize to be

threatening, that the defendant intended to place the victim in

fear of an imminent battery, and that the victim perceived the

threat."

Id.

A conviction for "[a]rmed assault with intent to murder

requires proof of assault

(while armed with a dangerous weapon)

and a specific intent to kill that equates with malice."

Commonwealth v. Vick,

910 N.E.2d 339, 350 (Mass. 2009)

(citing

Mr. Collins was convicted specifically of violating M.G.L.

c. 265 § 18, which states that anyone "being armed with a

dangerous weapon, [who] assaults another with intent to rob or

murder shall be punished by imprisonment."

8

13

APPENDIX

026

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 14 of 23

Commonwealth v.

Johnston,

845 N.E.2d 350, 354 (Mass. 2009)).

The presence of a mitigating factor "reduces the crime from

assault with intent to murder to assault with intent to kill, a

lesser included offense."

Vick,

910 N.E.2d at 350.

A

conviction for assault with intent to kill, however, still

requires both an armed assault and a specific intent to kill,

and further requires only that "a defendant's intent to kill

[arises] from the frailty of human nature in the face of certain

circumstances."

Id.

In analyzing constituent elements of this offense using the

categorical approach, the First Circuit has recognized that

"[s]omeone can commit the Massachusetts crime of simple assault

with offensive touching.

requirement" of ACCA.

424 (1st Cir. 2017)

133, 140 (2010)

[which] fails the force

United States v. Edwards, 857 F.3d 420,

(citing Johnson v. United States, 559 U.S.

("Johnson I")

(holding that "in the context of a

statutory definition of 'violent felony,' the phrase 'physical

force' means violent force-that is, force capable of causing

physical pain or injury to another person.")).

Simple assault,

then, cannot qualify as a predicate offense under the force

clause of ACCA.

Edwards,

857 F.3d at 424.

Armed assault with

intent to murder, however, requires proof of additional elements

and does qualify as a predicate offense because of the presence

of "a specific intent to kill."

Id. at 425.

In a parallel

14

APPENDIX

027

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 15 of 23

fashion, while a simple battery could be merely offensive

touching, and thus, not involve violent force if committed

without murderous intent, it could be said categorically to

involve wrongful force if committed with murderous intent.

Id.

Indeed, the intent requirement "makes it implausible that a

defendant could be convicted [for assault with intent to murder]

based on the offensive-touching approach" to assault and instead

appears to require that the defendant threatened violent force

against the victim.

Id.

Consequently, the First Circuit has

held, armed assault with intent to murder is a violent felony

under the force clause of ACCA.

Since a conviction for armed assault with intent to kill,

as was the charge at issue here, requires proof of the same

"specific intent to kill" as a conviction for armed assault with

intent to murder, I conclude Mr. Collins's June 18, 1992

convictions for armed assault with intent to kill is a proper

predicate offense under the force clause. 9

3.

Assault with a Deadly Weapon (ADW)

Mr. Collins challenges the classification of his two prior

convictions for ADW - on October 15, 2001 and on October 16,

Because the conviction for armed assault with intent to kill is

a predicate offense, Mr. Collins's June 18, 1992 conviction for

ABDW cannot separately count as a predicate offense, since the

two convictions arose out of the same factual circumstances. See

18 U.S.C. § 924 (e) (1).

9

15

APPENDIX

028

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 16 of 23

2008 - as predicate offenses.

[PSR <_II<_[ 39, 47, 50].

Like armed

assault with intent to kill, ADW builds on the Massachusetts

common law, 10 which recognizes two theories of simple assault:

threatened battery and attempted battery.

at 1163; see also infra.

See Porro,

989 N.E.2d

"The crime of ADW adds one additional

element [to the crime of common law assault], namely that the

assault was perpetrated by means of a dangerous weapon."

Commonwealth v. Melton,

763 N.E.2d 1092, 1096 (Mass. 2002)

The First Circuit has consistently held that "the element

of a dangerous weapon imports the 'violent force'

[Johnson I]

required by

into an otherwise overbroad simple assault statute"

because it has been interpreted to require the Commonwealth to

show "that the threat of harm was by means of a dangerous

weapon."

United States v.

Cir. 2015).

Whindleton,

797 F.3d 105, 114

(1st

"Logically, the harm threatened by an assault is

far more violent than offensive touching when committed with a

weapon that is designed to produce or used in a way that is

capable of producing serious bodily harm or death."

Id.

ADW is

therefore categorically a violent felony under the force clause

of ACCA and may serve as a predicate offense for the sentencing

enhancement.

Massachusetts law defines ADW as any assault committed "by

means of a dangerous weapon." M.G.L. c. 265 § 15B(b).

10

16

APPENDIX

029

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 17 of 23

Mr. Collins has two convictions for ADW under Massachusetts

law,

[PSR

39, 47], and these two convictions arose out of

actions committed on occasions different from one another and

from the actions that gave rise to Mr. Collins's conviction for

Armed Assault with Intent to kill.

4.

[PSR

35] .11

Assault and Battery with a Deadly Weapon (ABDW)

Mr. Collins spends the bulk of his petition arguing that

Massachusetts ABDW is not categorically a violent felony under

the force clause of ACCA.

As a theoretical proposition, his

argument has some force.

Massachusetts law punishes anyone who

"commits an assault and battery upon another by means of a

dangerous weapon," but provides no further clarification

regarding what constitutes "assault and battery."

§ 15A.

M.G.L. c. 265

Instead, the exact contours of this offense, as with

assault, come from the common law, which attributes "two

separate aspects to the crime of ABDW."

Tavares,

843 F.3d 1, 12

(1st Cir. 2016).

United States v.

Assault and battery

under the common law includes both "the intentional and

unjustified use of force upon the person of another, however

slight" and "the intentional commission of a wanton or reckless

As a practical matter, my analysis may end here then, since I

have identified the requisite three predicate offense committed

by Mr. Collins sufficient to support his classification as an

armed career criminal under ACCA.

For the sake of completeness,

however, I will address the remaining offenses that Mr. Collins

has challenged.

11

17

APPENDIX

030

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 18 of 23

act causing physical or bodily injury to another."

Because

Id.

ABDW may be committed in either way, the First Circuit has

assumed that ABDW "is divisible between its intentional and

reckless forms." 12

Cir. 2017)

United States v. Faust,

853 F.3d 39, 57

(1st

(citing Tavares, 843 F.3d at 13).

The intentional form of ABDW - which requires "the

intentional and unjustified use of force upon the person of

another, no matter how slight" - "constitutes a crime of

violence under§ 4Bl.2(a) (1) of the [Sentencing Guidelines]"

because ADW is a lesser-included offense of this form of ABDW

and ADW is, itself, a violent felony.

Tavares,

843 F.3d at 13.

Consequently, the First Circuit has determined that the

intentional form of ABDW may be treated as a violent felony

under the force clause of ACCA.

Faust,

853 F.3d at 57

("[W]e

have previously found that the terms 'crime of violence' under

the career offender guideline and 'violent felony' under the

The First Circuit's holding by Judge Kayatta in United States

v. Tavares, 843 F.3d 1, 13 (1st Cir. 2016) seems to state

definitively that ABDW is divisible, but in a subsequent

decision for the court, Judge Kayatta later appeared to qualify

this holding, saying that "[i]n Tavares, [the First Circuit]

attempted to predict how the Massachusetts Supreme Judicial

Court would rule," since the question of divisibility ultimately

must be decided by the SJC to be definitive.

United States v.

Kennedy, 881 F.3d 14, 20 (1st Cir. 2018).

To date, that issue

has not yet been definitively resolved by the SJC and, as

explained below, I need not explore it here.

12

18

APPENDIX

031

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 19 of 23

ACCA are nearly identical in meaning, so that decisions

construing one term inform the construction of the other.").

The reckless form of ABDW, however, is not categorically a

violent felony under ACCA because "it does not require that the

defendant intend to cause injury.

. or even be aware of the

risk of serious injury that any reasonable person would

perceive."

2017)

United States v. Windley,

864 F.3d 36, 38 (1st Cir.

(per curiam); see also United States v. Kennedy, 881 F.3d

14, 19 (1st Cir. 2018).

To affirm Mr. Collins's conviction, I

must find "both that Massachusetts ABDW is divisible into its

intentional and reckless forms, and that [Mr. Collins] pled

guilty to the intentional form."

Kennedy, 881 F.3d at 19-20.

In determining the latter question, I may look to both his

guilty plea and to the original charging documents.

See Shepard

v. United States, 544 U.S. 13, 19 (2005); Mathis v. United

States, 136 S. Ct. 2243, 2249 (2016).

These documents, however, have not been provided to me, so

I cannot reasonably determine Mr. Collins was convicted of the

intentional or reckless version of ABDW.

Consequently, I do not

rely on the March 6, 1990, June 18, 1992, July 2, 1996 and

August 12, 1992 convictions for ABDW as predicate offenses to

classify Mr. Collins as an armed career criminal.

5.

Breaking and Entering at Night

Finally, Mr. Collins challenges his conviction for Breaking

19

APPENDIX

032

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 20 of 23

and Entering a building at nighttime.

This conviction was not

included as one of his predicates in the PSR but it was raised

summarily in the Government's sentencing memorandum.

The

Government again only summarily mentions this conviction in a

footnote in its response to the petition now before me.

Under ACCA, a violent felony, by definition, includes

"burglary" in the generic sense in which the term is now used in

the criminal codes of most states.

U.S.

575, 598 (1990).

Taylor v. United States,

495

It therefore applies to any state statute

that criminalizes "an unlawful on unprivileged entry into, or

remaining in, a building or other structure, with intent to

commit a crime."

Id.; see also United States v. Stitt, 139 S.

Ct. 399, 405-06 (2018).

Massachusetts law, however, separates

the generic crime of "burglary" between two statutes - one which

criminalizes entry into "a dwelling house in the nighttime, with

intent to commit a felony," M.G.L. c. 266 § 14; and one which

criminalizes entry into "a building, ship, vessel or vehicle,

with intent to commit a felony."

M.G.L. c. 266 § 16.

Collins was convicted under the latter provision,

Mr.

[PSR 1 41],

and was specifically convicted of breaking and entering a

building.

In such circumstances, Mr. Collins's conviction constitutes

a predicate offense even if the underlying statute - M.G.L. c.

266 § 16 - criminalizes conduct that falls outside the generic

20

APPENDIX

033

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 21 of 23

definition of burglary; the Massachusetts statute is divisible

and Mr. Collins was convicted of an offense that satisfies the

generic definition of burglary.

570 U.S. 254, 257

(2013)

See Descamps v. United States,

(A divisible statute "sets out one or

more elements of the offense in the alternative - for example,

stating that burglary involves entry into a building or an

automobile."); Shepard,

544 U.S. at 16-17

(holding that a

sentencing court may look to "statutory elements, charging

documents, and jury instructions to determine whether an earlier

conviction [here, under M.G.L. c. 266 § 16] after trial was for

generic burglary" and implying that the Massachusetts statute

was divisible);

Taylor,

495 U.S. at 602

("[I]n a State whose

burglary statutes include entry of an automobile as well as a

building, if the indictment or information and jury instructions

show that the defendant was charged only with a burglary of a

building, and that the jury necessarily had to find entry of a

building to convict," this conviction was a predicate offense).

Mr. Collins's conviction was specifically for breaking and

entering into a building, and so is a valid predicate offense

for the purpose of the ACCA enhancement.

B.

Predicate Offenses Not Cha11enged in the Petition

Finally, Mr. Collins was also convicted on October 15, 2001

of armed robbery, armed assault with intent to rob, and

kidnapping.

[PSR '![ 39].

The three convictions all arose out of

21

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034

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 22 of 23

the same set of factual circumstances, were accompanied by a

conviction for ADW, and were listed as predicate offenses in the

Presentence Report.

[PSR

<J[<j[

39, 50].

Mr. Collins has not challenged the classification of these

convictions as predicate offenses in his habeas petition,

[See

generally Dkt. No. 52], although he has a legal basis to do so.

See generally, e.g., United States v. Starks, 861 F.3d 306 (1st

Cir. 2017)

(holding that Massachusetts armed robbery is not a

violent felony under the force clause); Commonwealth v. Benitez,

985 N. E. 2d 102 (Mass. 2013)

(holding that armed assault with

intent to rob is a lesser included offense of armed robbery,

suggesting in light of Starks that armed assault with intent to

rob is not a violent felony); Commonwealth v. Rivera, 949 N.E.2d

916 (Mass. 2011)

(holding that an individual can be convicted of

kidnapping if he confines a person by trick and without the use

of force);

United States v. Lattanzio, 232 F. Supp. 3d 220 (D.

Mass. 2017)

(suggesting that because a defendant may be guilty

in Massachusetts of kidnapping if he abducts someone through

trick, kidnapping is not categorically a violent felony).

However, an argument that any of these three offenses is

not, in fact, a violent felony has not been raised in this

petition, and such an argument would be supererogatory given the

status of the October 15, 2001 conviction for ADW as an ACCA

predicate arising from the same occasion on which the other

22

APPENDIX

035

Case 1:13-cr-10191-DPW Document 54 Filed 01/24/19 Page 23 of 23

three unchallenged October 15, 2001 convictions relied.

I

therefore decline to classify any of them as violent felonies,

providing a predicate offense for application of the ACCA as to

Mr. Collins.

See generally supra note 5.

IV. CONCLUSION

For the foregoing reasons,

under 28 U.S.C. § 2255.

I DENY the motion [Dkt. No. 52]

The Clerk is directed to terminate this

matter.

/s/ Doug1as P. Wood1oak

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

23

APPENDIX

036