Petition for Writ of Certiorari — Derek Capozzi, Petitioner v. United States

App. 1

INDEX OF APPENDICES

Index .............................................................................................App. 1

Memorandum and Order of the USDCMA Denying

Johnson Relief ..............................................................................App. 2

Amended Judgment of the USDCMA .........................................App. 19

United States v. Capozzi, 142 F.4th 91 (1st Cir. 2025) .................App. 26

Denial of Rehearing .....................................................................App. 32

18 U.S.C. § 924(e) .........................................................................App. 33

28 U.S.C. § 2255 ...........................................................................App. 34

Case 1:98-cr-10087-PBS Document 428 Filed 03/31/21 Page 1 of 17

App.2

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

DEREK CAPOZZI,

)

)

Petitioner,

)

)

v.

)

Criminal Action

)

No. 98-10087-PBS

UNITED STATES OF AMERICA,

)

)

Respondent.

)

___________________________________)

MEMORANDUM AND ORDER

March 31, 2021

Saris, D.J.

INTRODUCTION

Petitioner Derek Capozzi moves under 28 U.S.C. § 2255 to

challenge (1) his conviction for being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g), (2) his conviction

for use of a firearm in furtherance of a crime of violence in

violation of 18 U.S.C. § 924(c), and (3) his sentence

enhancement pursuant to the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e)(1).

After a review of the record, the Court ALLOWS in part and

DENIES in part the motion (Dkts. 403 and 416).

1

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BACKGROUND

I.

Criminal Proceedings

On July 8, 1996, Petitioner was charged in an indictment

with being a felon in possession of a firearm and ammunition in

violation of 18 U.S.C. § 922(g)(1) (Count 1s), attempted

extortion affecting interstate commerce in violation of 18

U.S.C. § 1951(a) (Count 3s), two counts of use of a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c)

(Counts 4s and 6s), and armed bank robbery, in violation of 18

U.S.C. § 2113(d) (Count 5s). Counts 1s, 3s, and 4s proceeded to

trial, while Counts 5s and 6s were severed. On November 16,

1999, the jury convicted Petitioner of Counts 1s, 3s, and 5s.

According to the presentence report (“PSR”), he had seven

ACCA violent felony predicate convictions and was an Armed

Career Criminal (“ACC”).1 Defendant did not file any objections

to this ACC classification or to the factual description of the

predicates. Moreover, there was no challenge to the ACC

classification during the sentencing hearing. On April 6, 2000,

the Court sentenced Petitioner to 360 months in prison.2

Those convictions include breaking and entering in the daytime

in violation of M.G.L. c. 266, § 18 (five convictions); entering

without breaking in violation of M.G.L. c. 266, § 17; assault

and battery with a dangerous weapon in violation of M.G.L. c.

265, § 15; and assault and battery on a police officer in

violation of M.G.L. c. 265, § 13D.

2 Petitioner’s Guidelines Sentencing Range was 235 to 293 months.

The Court sentenced Petitioner to 300 months as to Count 1s, 240

1

2

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II.

Direct Appeal

Petitioner appealed his conviction to the United States

Court of Appeals for the First Circuit, which affirmed on

October 6, 2003. United States v. Capozzi, 347 F.3d 327, 328

(1st Cir. 2003), cert. denied, Capozzi v. United States, 540

U.S. 1168 (2004).

III. First § 2255 Habeas Petition

On January 25, 2005, Petitioner filed his first motion

under 28 U.S.C. § 2255 challenging his conviction on the basis

of ineffective assistance of counsel. Mot. to Vacate, Set Aside

or Correct Sent., Capozzi v. United States, 2007 WL 162247 (D.

Mass. Jan. 12, 2007) (No. 05-10171), Dkt. 1. Petitioner amended

the motion on March 25, 2005, to add a claim under Shepard v.

United States, 544 U.S. 12 (2005), asserting that his previous

convictions did not constitute sufficient ACCA violent felony

predicates to qualify him as an ACC because they were nongeneric burglaries, that the Court violated his Sixth Amendment

right to a jury trial when it determined under a preponderance

standard that his prior convictions qualified him as an ACC, and

that his counsel provided ineffective assistance by failing to

raise those arguments. This Court denied that motion on January

months as to Count 3s to run concurrently with Count 1s, and 60

months as to Count 4s to run consecutively as required for the

§ 924(c) conviction.

3

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12, 2007. Among other things, the Court pointed out that the PSR

explicitly found that four of the Petitioner’s prior convictions

involved buildings and qualified him as an armed career criminal

under 18 U.S.C. § 924(e). The Court also rejected as untimely

the proposed amendment to his habeas petition asserting that his

“prior convictions for allegedly non-generic burglary were

impermissible ACCA predicates” on the ground that the amendment

contained new details in his prior record that were never raised

in the original habeas motion. The Court denied the certificate

of appealability, which was filed only with respect to his Sixth

Amendment claim under Almendarez Torres v. United States, 523

U.S. 224 (1998). The First Circuit affirmed the denial of the

request for a certificate of appealability, stating:

Petitioner’s challenge to the continued validity of

Almendarez-Torres v. United States, 523 U.S. 224 (1998),

the only claim actually addressed in petitioner’s COA

application before the district court, does not present

a debatable claim. See United States v. Burghardt, 939

F.3d 397, 409 (1st Cir. 2019). Petitioner concedes that

the district court correctly concluded that his

remaining challenges to his sentence under the Armed

Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), are

time-barred, so no COA will issue on those claims. See

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Even absent

this concession, we would find no grounds for granting

a COA because petitioner failed to include the remaining

ACCA claims in his request for a COA in the district

court. See Peralta v. United States, 597 F.3d 74, 84

(1st Cir. 2010) (claim not included in request for COA

in district court is waived).

Capozzi v. United States, Appeal No. 16-1562 (1st. Cir. 2019)

(Document 00117525117).

4

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App.6

IV.

Second or Successive § 2255 Habeas Motion

On November 27, 2015, Petitioner filed a pro se motion for

authorization to file a second or successive § 2255 motion

challenging his sentence enhancement pursuant to 18 U.S.C.

§ 924(e)(1) based on Johnson v. United States, 576 U.S. 591

(2015) (“Johnson II”). After counsel was appointed, Petitioner

amended his motion to include challenging his conviction for use

of a firearm during attempted extortion in violation of 18

U.S.C. § 924(c) on Johnson II grounds.

On December 11, 2019, the First Circuit granted

Petitioner’s request for a second or successive § 2255 motion.

Based on Johnson II and United States v. Davis, 139 S. Ct. 2319

(2019), the First Circuit concluded that “Capozzi has made a

prima facie showing that his challenge to his conviction under

18 U.S.C. § 924(c) legitimately relies on a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.”

Dkt. 387 at 1 (internal citations omitted). The First Circuit

added: “To the extent his application includes additional

claims, the court expresses no opinion whatsoever as to whether

those claims satisfy either of the gatekeeping provisions set

out at 28 U.S.C. § 2255(h), a finding that must be made by the

district court in the first instance.” Id. The First Circuit did

not address the claim under § 924(e)(1). Id. However, it deemed

5

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App.7

Petitioner’s second or successive § 2255 motion filed on

November 27, 2015.

On June 22, 2020, after the § 2255 motion was transferred

back before this Court, Petitioner filed a supplement to his

second or successive § 2255 motion, challenging his conviction

for being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g) based on Rehaif v. United States, 139 S. Ct.

2191 (2019). He did not file a motion to amend pursuant to Fed.

R. Civ. P. 15(a)(2). Petitioner also did not present his Rehaif

claim to the First Circuit. The motion as supplemented is now

before the Court.

DISCUSSION

I.

Standard of Review

A federal criminal defendant “may petition for postconviction relief under 28 U.S.C. § 2255(a) if, inter alia, the

individual’s sentence ‘was imposed in violation of the

Constitution or laws of the United States’ or ‘is otherwise

subject to collateral attack.’” Lassend v. United States, 898

F.3d 115, 122 (1st Cir. 2018) (quoting 28 U.S.C. § 2255(a)). The

petitioner bears the burden of establishing his entitlement to

relief. Id.

6

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App.8

II.

Conviction Under 18 U.S.C. § 924(c)3

Petitioner argues that his conviction for use of a firearm

during a crime of violence in violation of § 924(c) must be

vacated because his predicate conviction for attempted Hobbs Act

extortion in violation of 18 U.S.C. § 1951(a) does not qualify

as a “crime of violence” under 18 U.S.C. § 924(c)(3)(B).

Section 924(c) sets out mandatory sentence enhancements

applicable to:

any person who, during and in relation to any crime of

violence . . . for which the person may be prosecuted in

a court of the United States, uses or carries a firearm,

or who, in furtherance of any such crime, possesses a

firearm.

Id. § 924(c)(1)(A). The statute defines a “crime of violence”

as:

an offense that is a felony and-(A) has as an element the use, attempted use, or

threatened use of physical force against the person or

property of another, or

(B) that by its nature, involves a substantial risk that

physical force against the person or property of another

may be used in the course of committing the offense.

Id. § 924(c)(3). In United States v. Davis, the Supreme Court

held that the statute’s residual clause, § 924(c)(3)(B), is

unconstitutionally vague. 139 S. Ct. 2319, 2336 (2019).

The government does not dispute that the Court has jurisdiction

over Petitioner’s challenge to his conviction under 18 U.S.C.

§ 924(c).

3

7

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App.9

Petitioner argues that a conviction for attempted Hobbs Act

extortion does not qualify under the “force” clause in

§ 924(c)(3)(A) because it can be committed using threats to

economic interests. The Government responds that Petitioner’s

conviction for attempted Hobbs Act extortion satisfies the

“force” clause because the statute defines “extortion” as “the

obtaining of property from another, with his consent, induced by

wrongful use of actual or threatened force, violence, or fear,

or under color of official right.” 18 U.S.C. § 1951(b)(2).

Petitioner was charged with “the attempted obtaining of money,

in the amount of $4,000.00, more or less, from a person, with

his consent, induced by wrongful use of actual and threatened

force, violence and fear.” Dkt. 387-1 at 99. The Court

instructed the jury: “What does extortion mean? Extortion means

the obtaining of property from another with his consent, induced

by wrongful use of actual or threatened force, violence or

fear.” Dkt. 287 at 109:10-13.

The First Circuit has held that a Hobbs Act prosecution can

be based on a “fear” of economic loss. See United States v.

Cruzado-Laureano, 404 F.3d 470, 481 (1st Cir. 2005) (stating

that “[e]xtortion by ‘fear’ can mean fear of economic loss”);

United States v. Sturm, 870 F.2d 769, 772 (1st Cir. 1989)

(holding that attempted Hobbs Act extortion “may be based on a

creditor’s fear of nonrepayment”.) See also First Cir. Pattern

8

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App.10

Jury Instr. § 4.18.1951, Interference with Commerce by Robbery

or Extortion (Hobbs Act), cmt. 2 (“The ‘fear’ element of extortion

can include fear of economic loss. . .. If the extortion is

economic fear, the term ‘wrongful’ must be defined to require that

the government prove that the defendant did not have a claim of

right to the property, and that the defendant knew that he or

she was not legally entitled to the property obtained.”)

(citations omitted). Other circuits agree. See United States v.

Villalobos, 748 F.3d 953, 955, 956–57 (9th Cir. 2014) (finding

Hobbs Act extortion where defendant threatened to mislead

authorities investigating an offense); Levitt v. Yelp! Inc., 765

F.3d 1123, 1130–33 (9th Cir. 2014) (finding wrongful threats of

economic injury would prove Hobbs Act extortion); United States

v. Iozzi, 420 F.2d 512, 515 (4th Cir. 1970) (acknowledging that

fear of economic loss is sufficient to support a conviction for

Hobbs Act extortion).

The question is whether the “fear” element of extortion

constitutes “physical force” as used in § 924(c)(3)(A). The

Supreme Court has held that “physical force” requires “violent

force,” which means “strong physical force” or “force capable of

causing physical pain or injury to another person.” Johnson v.

United States, 559 U.S. 133, 140 (2010) (cleaned up). The actual

facts supporting the conviction do not matter because the Court

must follow the so-called “categorical approach.” Mathis v.

9

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United States, 136 S. Ct. 2243, 2251 (2016) (under the

categorical analysis, how a defendant “actually perpetrated the

crime . . . makes no difference”). Applying the “categorical

approach,” the Court must determine whether the statutory

elements of the offense “necessarily require the use, attempted

use, or the threatened use of physical force” under the force

clause in § 924(c). United States v. Simms, 914 F.3d 229, 233

(4th Cir. 2019). Under the caselaw, the Court concludes that

Hobbs Act extortion can be committed without “the use, attempted

use or threatened use of physical force” because it can be

committed by fear of economic harm. See In re Hernandez, 857

F.3d 1162, 1166-67 (11th Cir. 2017) (Martin, J., concurring)

(“[A]ttempted Hobbs Act extortion is even less likely [than

completed Hobbs Act extortion] to qualify as a ‘crime of

violence’ in light of Johnson.” (emphasis in original)).

A number of recent district court decisions have held that

Hobbs act extortion does not qualify as a crime of violence

under § 924(c)’s force clause because of the “fear” element. See

United States v. White, No. MO:11-CR-0027612, 2020 WL 8024725,

at *3–4 (W.D. Tex. Dec. 29, 2020) (“The word fear brings

nonviolent blackmail and economic extortion within the scope of

the Hobbs Act. . . . After Davis, Hobbs Act extortion can

qualify as a crime of violence only under the now

unconstitutionally vague residual clause.”) (cleaned up); Brown

10

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v. United States, No. 3:05-CR-376-RJC-3, 2020 WL 437921, at *2

(W.D.N.C. Jan. 28, 2020) (“The offense underlying Petitioner’s

§ 924(c) convictions was Hobbs Act extortion which the

Government correctly concedes is not a crime of violence under

§ 924(c)’s force clause.”) (citations omitted); Burleson v.

United States, No. 3:20-CV-487, 2020 WL 7027503, at *4 (M.D.

Tenn. Nov. 27, 2020) (pointing to the government’s concession

that attempted Hobbs Act extortion cannot satisfy the force

clause). The Government relies on United States v. Nikolla for

the proposition that Hobbs Act extortion is categorically a

“crime of violence.” 950 F.3d 51, 52 (2d Cir.), cert. denied,

141 S. Ct. 634 (2020). That case is easily distinguished because

the Second Circuit’s holding is limited to “the offense

specified in the clause of 18 U.S.C. § 1951(a) by the language

‘[w]hoever . . . commits or threatens physical violence to any

person or property in furtherance of a plan or purpose to do

anything in violation of [§ 1951].” Nikolla, 950 F.3d at 54; see

Scheidler v. Nat’l Org. for Women, 547 U.S. 9, 22 (2006)

(acknowledging that acts or threats of physical violence in

furtherance of Hobbs Act robbery or extortion constitute a

“separate Hobbs Act crime”).

Because attempted Hobbs Act extortion does not qualify as a

“crime of violence,” Petitioner’s § 924(c) conviction must be

vacated.

11

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App.13

III. Conviction Under 18 U.S.C. § 922(g) (Rehaif Claim)

The Government argues that this Court has no jurisdiction over

the Petitioner’s Rehaif claim because he did not include it in

his motion before the First Circuit. I agree. Petitioner

supplemented his motion after the First Circuit issued the order

allowing the second or successive petition. Because the claim

does not satisfy the gatekeeping requirements, the Court

dismisses the claim without prejudice on the ground this Court

lacks jurisdiction. See Evans-Garcia v. United States, 744 F.3d

235, 237 (1st Cir. 2014); 28 U.S.C. § 2255(h) (“A second or

successive motion must be certified as provided in section 2244

by a panel of the appropriate court of appeals[.]”); 28 U.S.C.

§ 2244(b)(2) (“A claim presented in a second or successive

habeas corpus application under section 2254 that was not

presented in a prior application shall be dismissed unless . . .

the applicant shows that the 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)(4) (“A district court

shall dismiss any claim presented in a second or successive

application that the court of appeals has authorized to be filed

unless the applicant shows that the claim satisfies the

requirements of this section.”).

12

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App.14

IV.

Sentence Enhancement Under 18 U.S.C. § 924(e)(1)

Petitioner argues that his ACCA enhanced sentence must be

vacated because he lacks the necessary three predicate

convictions to qualify as an ACC under 18 U.S.C. § 924(e)(1).

Specifically, Petitioner states that Massachusetts breaking and

entering does not qualify as a “violent felony” after the

Supreme Court invalidated the residual clause in

§ 924(e)(2)(B)(ii) because “[t]here was no discussion of the

bases upon which the ACCA predicates were considered violent

felonies” during sentencing, Dkt. 403 at 3, and the offense

satisfies neither the force clause, § 924(e)(2)(B)(i), nor the

enumerated clause, the portion of § 924(e)(2)(B)(ii) that

defines a “violent felony” as “burglary, arson, or extortion.”

The ACCA sets out mandatory sentence enhancements

applicable to:

a person who violates section 922(g) of this title and

has three previous convictions by any court referred to

in section 922(g)(1) of this title for a violent felony

. . . committed on occasions different from one another.

18 U.S.C. § 924(e)(1). The statute defines a “violent felony”

as:

any crime punishable by imprisonment

exceeding one year . . . that--

for

a

term

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

13

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App.15

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B). In Johnson II, the Supreme Court considered

the ACCA’s residual clause, the portion of § 924(c)(2)(b)(ii)

that defines a “violent felony” as any felony that “involves

conduct that presents a serious potential risk of physical

injury to another.” 576 U.S. at 593. The Court held that the

residual clause is unconstitutionally vague. Id. at 606.

As a threshold matter, the Court must determine whether it

has jurisdiction to hear this claim since the First Circuit did

not directly address the issue. The Government argues that

Petitioner’s challenge to his ACCA sentence enhancement pursuant

to 18 U.S.C. § 924(e)(1) is really an untimely claim under

Mathis, 136 S. Ct. at 2247–48, not a timely claim under Johnson

II. In Mathis, the Supreme Court held that a “prior crime

qualifies as an ACCA predicate if, but only if, its elements are

the same as, or narrower than, those of the generic offense.”

Id.

Petitioner’s claim that his Massachusetts breaking and

entering convictions are not violent felony predicates after

Johnson II invalidated the residual clause relies, in the

Government’s view, on the argument that those convictions also

do not fall under the enumerated clause because their elements

are broader than generic burglary –- a Mathis claim. The

14

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App.16

Government relies heavily on United States v. Dimott, 881 F.3d

232, 234 (1st Cir. 2018), which held that a challenge to the

designation of Maine burglary convictions as ACCA violent felony

predicates based on Johnson II was really an untimely Mathis

claim. The First Circuit added, “[T]o successfully advance a

Johnson II claim on collateral review, a habeas petitioner bears

the burden of establishing that it is more likely than not that

he was sentenced solely pursuant to ACCA’s residual clause.” Id.

at 243. Because Mathis is not a new rule of constitutional law

that was previously unavailable and has been made retroactive to

claims on collateral review by the Supreme Court, the Government

argues that Petitioner’s claim does not meet the gatekeeping

requirements for a second or successive § 2255 motion. See 28

U.S.C. § 2244(b)(2), 2244(b)(4).

Petitioner responds that “the sentencing court did not have

sufficient information to find that the Defendant had committed

three generic burglaries” because “[t]he PSR does not indicate

whether the B&Es identified in paragraphs 48, 49, 53, or 54

involved buildings or structures” and “does not indicate whether

the ‘entry’ described in PSR ¶ 50 was in fact ‘unlawful or

unprivileged.’” Dkt. 427 at 13-14; see Taylor v. United States,

495 U.S. 575, 598 (1990) (defining generic burglary as “an

unlawful or unprivileged entry into, or remaining in, a building

or other structure, with intent to commit a crime”). Thus, in

15

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App.17

Petitioner’s view, the Court must have relied on the residual

clause at sentencing and Johnson II applies.

The Government correctly states that the Court does not

have jurisdiction because Petitioner’s challenge is an untimely

Mathis claim. See 28 U.S.C. § 2244(b)(2), 2244(b)(4). As it

points out, the Court already rejected this claim in the initial

habeas motion, and in denying the certificate of appealability,

the First Circuit stated, “Petitioner concedes that the district

court correctly concluded that his remaining challenges to his

sentence under the [ACCA] are time-barred. . . . Even absent

this concession, we would find no grounds for granting a COA

because petitioner failed to include the remaining ACCA claims

in his request for a COA in the district court.” Capozzi v.

United States, Appeal No. 16-1562 (1st. Cir. 2019) (Document

00117525117). Moreover, there is no basis in the record for

concluding that the Court sentenced Petitioner solely under the

residual clause. In United States v. Wilkinson, the First

Circuit held that breaking and entering of a building in the

nighttime with the intent to commit a felony in violation of

M.G.L. c. 266, § 16 fell within either the enumerated or

residual prong of 18 U.S.C. § 924(e)(1) “or both” at the time of

Petitioner’s sentencing. 926 F.2d 22, 29 (1st Cir. 1991),

overruled on other grounds, United States v. Vazquez, 724 F.3d

15 (1st Cir. 2013). It also relied on the Supreme Court holding

16

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App.18

that “burglary” includes “an unlawful . . . entry into . . . a

building with intent to commit a crime.” Taylor v. United

States, 495 U.S. 575 (1990).

Because the Court likely sentenced under both clauses, the

attempt to characterize this as a Johnson claim fails.

ORDER

For the reasons stated above, Petitioner’s motion to

vacate, set aside, or correct his sentence under 28 U.S.C.

§ 2255 (Dkts. 403 and 416) is ALLOWED in part as to his § 924(c)

conviction and DENIED in part as to his § 922(g) conviction and

his sentence enhancement pursuant to § 924(e)(1).

SO ORDERED.

/s/ PATTI B. SARIS

Hon. Patti B. Saris

United States District Judge

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Title & Section

18 USC § 922(g)(1)

18 USC § 1951

Nature of Offense

Felon in Possession of a Firearm

Attempted Extortion Affecting Commerce

Offense Ended

1s

02/18/98

3s

02/18/98

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App.26

United States v. Capozzi

United States Court of Appeals for the First Circuit

July 2, 2025, Decided

No. 22-1243

Reporter

142 F.4th 91 *; 2025 U.S. App. LEXIS 16319 **; 2025 LX 282389; 2025 WL 1822949

UNITED STATES, Appellee, v. DEREK

CAPOZZI, Defendant, Appellant.

Prior History: [**1] ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS. [Hon. Patti

B. Saris, U.S. District Judge].

Capozzi v. United States, 531 F. Supp. 3d 399,

2021 U.S. Dist. LEXIS 63966, 2021 WL 1210355

(Mar. 31, 2021)

Counsel: Dana Goldblatt, with whom The Law

Office of Dana Goldblatt was on brief, for

appellant.

Robert E. Richardson, Assistant United States

Attorney, with whom Rachael S. Rollins, United

States Attorney, was on brief, for appellee.

Judges: Before Barron, Chief Judge, and Howard,

Circuit Judge.*

Opinion by: HOWARD

Opinion

[*93] HOWARD, Circuit Judge. Derek Capozzi

brings two challenges to the district court's

disposition of his motion to vacate his sentence

* Judge Selya heard oral argument in this case and participated in the

initial semble thereafter. His death on February 22, 2025 ended his

involvement in this case. The remaining two panelists issued this

opinion pursuant to 28 U.S.C. § 46(d).

under 28 U.S.C. § 2255. First, he argues that

Johnson v. United States, 576 U.S. 591, 135 S. Ct.

2551, 192 L. Ed. 2d 569 (2015) ("Johnson II"),

invalidates his enhanced sentence imposed under

the Armed Career Criminal Act ("ACCA").

Second, he argues that although the court correctly

vacated one of his convictions, it abused its

discretion when it corrected that error by vacating

the sentence for that conviction rather than

conducting a new sentencing proceeding to

resentence him for all his related convictions.

Because Capozzi is time-barred from making the

Johnson II claim and fails to meet his burden for

the abuse-of-discretion claim, we affirm.

I.

A.

We begin with a brief overview of the two bodies

of law that intersect to form the core of Capozzi's

appeal: the ACCA and the Antiterrorism and

Effective [**2] Death Penalty Act ("AEDPA").

The ACCA imposes a mandatory fifteen-year

minimum sentence on defendants convicted of

violating 18 U.S.C. § 922(g) who have previously

been convicted of three "violent felon[ies]." 18

U.S.C. § 924(e). As originally enacted, the statute

defines a "violent felony" as any crime that is

punishable by greater than one year of

imprisonment and that: (1) "has as an element the

use, attempted use, or threatened use of physical

force against the person of another" (the force

United App.27

States v. Capozzi

clause); (2) is "burglary, arson, or extortion [or]

involves the use of explosives" (the enumerated

clause); or (3) "otherwise involves conduct that

presents a serious risk of physical injury to another"

(the residual clause). Id. § 924(e)(2)(B). In Johnson

II, however, the Supreme Court struck down the

residual clause as unconstitutional, holding that the

clause's language was too vague to comport with

due process principles. 576 U.S. at 597. The Court

accordingly severed the clause from the statute,

prohibiting future sentences from being enhanced

under the residual clause. Id. at 606.

one year after the inmate's final judgment of

conviction. See, e.g., Pagan-San Miguel v. United

States, 736 F.3d 44, 45 (1st Cir. 2013) (per curiam)

(denying application for leave [**4] to file a §

2255 motion where petitioner relied on Supreme

Court decisions that "did not announce a new rule

of constitutional law"); Butterworth v. United

States, 775 F.3d 459, 465-68, 470 (1st Cir. 2015)

(affirming denial of relief where petitioner relied on

Supreme Court decision that "was not retroactively

applicable on collateral review").

Johnson II is an example of the former kind of case:

The other law at issue, AEDPA, was enacted "to it announced a "substantive rule of law" that applies

reduce delays in the execution of state and federal retroactively on collateral review and reopened

criminal sentences." Woodford v. Garceau, 538 federal courts to § 2255 motions from inmates

U.S. 202, 206, 123 S. Ct. 1398, 155 L. Ed. 2d 363 sentenced under the ACCA's residual clause for one

(2003). As relevant here, AEDPA imposes strict year following its announcement. Shea v. United

timeliness requirements on federal [**3] inmates' States, 976 F.3d 63, 65-66 (1st Cir. 2020) (citing

motions to "vacate, set aside, or correct" a sentence Welch v. United States, 578 U.S. 120, 130, 136 S.

based on its asserted violation of federal law.1 28 Ct. 1257, 194 L. Ed. 2d 387 (2016)).

U.S.C. § 2255(a). Generally, AEDPA imposes a

one-year statute of limitations on such motions, Mathis v. United States, 579 U.S. 500, 136 S. Ct.

which begins to run when "the judgment of 2243, 195 L. Ed. 2d 604 (2016), on the other hand,

conviction becomes final." Id. § 2255(f)(1). But, if is an example of the latter kind of case. In Mathis,

the § 2255 motion is based on a right that "has been the Supreme Court clarified how lower courts

newly recognized by the Supreme Court and made should determine whether a prior conviction under

retroactively applicable to [*94] cases on an "alternatively phrased statute" counts as a

collateral review," the one-year countdown resets "violent felony" under the ACCA's enumerated

on the "date on which the right asserted was clause. See 579 U.S. at 517. In what it described as

initially recognized by the Supreme Court." Id. § "a straightforward case," the Court drew on

2255(f)(3). In other words, when the Supreme "longstanding principles" from its prior decisions to

Court articulates a substantive constitutional right clarify that lower courts "should do what [the

for the first time and determines that it applies to Court] [has] previously approved," namely,

cases already decided, a federal inmate has one compare only the elements of the statute at issue to

year from the date of the Supreme Court's decision the generic definition of the relevant offense in the

to bring a claim asserting that right in federal court. enumerated clause. See id. at 509, 519. While the

If the Supreme Court's decision does not newly Supreme Court outlined the [**5] contours of the

announce a substantive constitutional right or is not enumerated clause in Mathis, providing guidance to

retroactively applicable, however, the clock is not courts applying the ACCA thereafter, it "did not

reset, and AEDPA bars lower courts from hearing a announce a new, retroactively applicable rule" in

§ 2255 motion grounded in that decision more than that case for purposes of AEDPA's timeliness bar.

Dimott v. United States, 881 F.3d 232, 237 (1st Cir.

2018) (citing Mathis, 579 U.S. at 519).

1 Such

motions are roughly analogous to a state inmate's habeascorpus petition. See Hill v. United States, 368 U.S. 424, 427, 82 S.

Ct. 468, 7 L. Ed. 2d 417 (1962).

Thus, Johnson II opened a one-year window for §

United App.28

States v. Capozzi

2255 motions, while Mathis did not. AEDPA

consequently prohibits federal courts from hearing

retroactive Johnson II claims when the claimant

relies on a nonretroactive case like Mathis as a

steppingstone to argue that the sentencing court

must have used the stricken residual clause in

applying the ACCA enhancement. Id. at 237-38.

Otherwise, litigants could circumvent AEDPA's

timeliness bar by shoehorning into a Johnson II

claim any sentencing court's error in applying the

force or enumerated clauses by construing the

sentence to necessarily fall under the "catch-all"

criteria of the residual clause. Id. ("To hold

otherwise would create an end run around

AEDPA's statute of limitations. It would allow

petitioners to clear the timeliness bar by

bootstrapping their Mathis claims onto Johnson II

claims . . . . This cannot be right.").

[*95] B.

With all this in mind, we turn to the case at hand. In

1999, a jury convicted Capozzi on three counts:

possession of a firearm as a felon under 18 U.S.C. §

922(g)(1); attempted extortion [**6] under 18

U.S.C. § 1951(a); and use of a firearm in

furtherance of a crime of violence under 18 U.S.C.

§ 924(c). At sentencing, the district court

determined that the ACCA subjected Capozzi to a

fifteen-year minimum sentence because eight of his

previous convictions in Massachusetts state courts

qualified as ACCA predicate offenses: five

"breaking and entering in the daytime" ("B&E")

convictions under Mass. Gen. Laws ch. 266, § 18;

one "entering without breaking" conviction under

Mass. Gen. Laws ch. 266, § 17; one "assault and

battery with a dangerous weapon" conviction under

Mass. Gen. Laws ch. 265, § 15; and one "assault

and battery of a police officer" conviction under

Mass. Gen. Laws ch. 265, § 13D. The record of the

original sentencing is unclear as to which ACCA

clause(s) the court viewed the convictions to

correspond. Still, accounting for the ACCA

enhancement, the court sentenced Capozzi to a total

of 360 months in prison: 300 months for the felon-

in-possession count; 240 months for the attemptedextortion count to be served concurrently with the

felon-in-possession sentence; and 60 months for the

firearm-in-furtherance count to be served

consecutively to the first 300 months. Capozzi

directly appealed the convictions to this court but

was unsuccessful. See United States v. Capozzi,

347 F.3d 327, 337 (1st Cir. 2003). The Supreme

Court declined to review. Capozzi v. United States,

540 U.S. 1168, 124 S. Ct. 1187, 157 L. Ed. 2d 1218

(2004).

In 2005, Capozzi filed his first [**7] § 2255

motion, in which he claimed that his B&E

convictions should not have counted as ACCA

predicates. Citing Taylor v. United States, 495 U.S.

575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), he

noted that for a prior conviction to qualify as

"burglary" for the purposes of the ACCA's

enumerated

clause,

see

28

U.S.C.

§

2255(e)(2)(B)(ii), the prior conviction must involve

unlawful entry into a "building or structure."

Capozzi contrasted the Massachusetts statute giving

rise to his B&E convictions, which criminalizes

breaking and entering not only a building but also a

"ship or motor vehicle or vessel." See Mass. Gen.

Laws ch. 266, § 18. He argued that, because § 18

encompasses conduct that does not fit within the

generic definition of "burglary" outlined in Taylor - "an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with

intent to commit a crime," 495 U.S. at 598 -- the

government could not have properly treated his

B&E convictions as "burglaries" under the ACCA's

enumerated clause absent a showing that he

specifically pled guilty to breaking and entering a

building, as opposed to a "ship or motor vehicle or

vessel," Mass. Gen. Laws ch. 266, § 18 (1999).

The district court held that the government did

make that showing, however. The court reviewed

the presentence report ("PSR") used during

sentencing and concluded that it "explicitly [**8]

indicated that at least four of [Capozzi's] prior

convictions involved buildings rather than ships,

vessels, or vehicles." Capozzi v. United States, No.

United App.29

States v. Capozzi

05-10171, 2007 U.S. Dist. LEXIS 3730, 2007 WL

162247, at *6 (D. Mass. Jan. 12, 2007) ("Capozzi

I"). Thus, the reviewing district court concluded,

"the claim [was] barred." Id.

In 2015, within the one-year period after the

Supreme Court issued its decision in Johnson II,

Capozzi sought permission from this court to file a

second or successive motion to vacate. His

application was approved, and he filed a second §

2255 motion based on Johnson II. While the [*96]

motion was still pending before the district court,

he amended it and requested that the court also

vacate his firearm-in-furtherance conviction in

accordance with the Supreme Court's decision in

United States v. Davis, 588 U.S. 445, 139 S. Ct.

2319, 204 L. Ed. 2d 757 (2019).2

The district court granted the motion as to the

firearm-in-furtherance conviction but denied it as to

Capozzi's other requests for relief, including his

Johnson II claim. Capozzi v. United States, 531 F.

Supp. 3d 399, 407 (D. Mass. 2021) ("Capozzi II").

In so doing, the court reduced Capozzi's sentence

by sixty months to reflect the consecutive sentence

of that duration imposed for the vacated firearm-infurtherance conviction. Id.

at 237, Capozzi was prohibited from asserting that

case as a basis for relief in his second § 2255

motion, more than a decade after his conviction

was finalized. Capozzi II, 531 F. Supp. 3d at 40607. The district court thus concluded that it lacked

jurisdiction to hear the claim. Id. at 406.

Capozzi appeals on two grounds. He argues (1) that

the district court had jurisdiction to hear his

Johnson II-styled claim and (2) that the court erred

in opting to simply vacate the sixty-month

consecutive sentence instead of holding a

resentencing hearing. We address each argument in

turn.

II.

A.

We review de novo the district court's denial of a

habeas petition on procedural grounds. Dimott, 881

F.3d at 236.

AEDPA provides us with jurisdiction to reach the

merits of Capozzi's ACCA claim if the right that it

asserts derives from Johnson II, but it bars

some other

In denying Capozzi's Johnson II challenge to the jurisdiction if the right derives from

3

ACCA enhancement, the district court reasoned non-retroactive case such as Mathis. To present a

Johnson II claim, Capozzi must show that [**10]

that although Capozzi styled his challenge as one

arising from Johnson II, it actually amounted his "original ACCA sentence [was] based solely on

to [**9] a Mathis claim because there was "no the residual clause." Id. In the absence of express

basis in the record for concluding that the Court statements from the district court judge presiding

sentenced [Capozzi] solely under the residual over the sentencing, we afford "due weight" to any

clause" as a Johnson II claim would require, findings made by that same judge while presiding

concluding instead that "the Court likely sentenced over subsequent postconviction motions when that

[her] own decisions at

under both [the enumerated and residual] clauses." judge is "describing

4

sentencing."

Id.

at

237.

Id. at 406-07. And because Mathis did not reset the

§ 2255 statute of limitations, see Dimott, 881 F.3d

3

2 Capozzi

also added a request to vacate his felon-in-possession

conviction based on Rehaif v. United States, 588 U.S. 225, 139 S.

Ct. 2191, 204 L. Ed. 2d 594 (2019), which the district court

dismissed for lack of jurisdiction. Capozzi v. United States, 531 F.

Supp. 3d 399, 405 (D. Mass. 2021). He does not pursue this issue on

appeal.

The government contends that Capozzi waived any appeal to the

district court's determination that he brought a Mathis claim because

he did not expressly address that point in his opening brief. Because

we ultimately lack jurisdiction over Capozzi's claim, we need not

decide the waiver question.

4 A § 2255 motion is usually heard by the district court judge that

presided over the sentencing proceedings. See 28 U.S.C. § 2255(a)

United App.30

States v. Capozzi

[*97] Here, when the district court originally

sentenced Capozzi under the ACCA, it made no

express reference to the ACCA's definitional

clauses. But the same district court judge did make

statements on the matter in both the 2005 and later

postconviction proceedings. When reviewing

Capozzi's 2005 motion, the court concluded that

Capozzi had failed to show that his prior

convictions could not qualify as "violent felonies"

under the ACCA's enumerated clause. The court

explained that the PSR used during the original

sentencing "explicitly indicated that at least four of

Petitioner's prior convictions involved buildings."

Capozzi I, 2007 U.S. Dist. LEXIS 3730, 2007 WL

162247, at *6. The court did not once mention

whether the burglaries were "otherwise dangerous"

or use any language from the residual clause. And

when reviewing Capozzi's 2022 motion, the same

district court judge held that there [**11] was "no

basis in the record for concluding that the Court

sentenced Petitioner solely under the residual

clause," explicitly stating what was implicit in the

2005 opinion.5 Capozzi II, 531 F. Supp. 3d at 407.

Affording these findings "due weight," as we must,

see Dimott, 881 F.3d at 237, leads us to the

conclusion that Capozzi's ACCA enhancement was

not "based solely" on the residual clause, id. at

("A prisoner may . . . move the court which imposed the sentence to

vacate, set aside, or correct the sentence.").

5 Contrary to Capozzi's objection, we do not read the district court's

subsequent citation to United States v. Wilkinson, 926 F.2d 22 (1st

Cir. 1991), as suggesting that all Massachusetts B&E convictions

categorically qualify as ACCA predicates. See Capozzi II, 531 F.

Supp. 3d at 407. The court cited Wilkinson only after prefacing that

"there is no basis in the record for concluding that the Court

sentenced Petitioner solely under the residual clause," indicating that

the court conducted the requisite case-specific inquiry. See id. Its

subsequent citation to Wilkinson is more naturally read as supportive

authority for its conclusion that, given the record's clarity that

Capozzi entered a building in the commission of the relevant B&E

offenses, the sentencing court could permissibly rely on the

enumerated clause at his original sentencing. Indeed, had the district

court attributed the broad proposition to Wilkinson that Capozzi

intimates, it would have obviated the need for the rest of its analysis,

as it would have been manifestly clear that Capozzi's convictions

qualified as ACCA predicates under the enumerated clause.

236.6 As a result, Capozzi cannot make out a

Johnson II challenge. Rather, because "the linchpin

of [his] argument" is that his Massachusetts B&E

convictions are for "nongeneric offense[s]" such

that they "cannot qualify as [] ACCA predicate[s],"

we agree with the district court that Capozzi's

"petition[] depend[s] on Mathis, and [is] thus

untimely." See id. at 237-38.

Capozzi acknowledges the district court's finding

on this score, but he maintains that the court's

reliance on the enumerated clause at the time of his

original sentencing was legally impossible, and

thus mistaken, under Taylor v. United States, 495

U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607

(1990). Irrespective of its merits, this argument

cannot provide Capozzi with a basis for relief.

Taylor was decided well before Capozzi's

conviction and sentencing; AEDPA thus requires

him to have brought any § 2255 motion on that

ground within one year of the final judgment

against him. 28 U.S.C. § 2255(f). Indeed, [**12]

Capozzi did make such a challenge in his first §

2255 motion in 2005. But the Supreme Court's

subsequent decision in Johnson II does not provide

him with an opportunity to relitigate the claims he

raised then, as none invoked the residual [*98]

clause. See Capozzi I, 2007 U.S. Dist. LEXIS 3730,

2007 WL 162247, at *1-5. And now, any claim

asserting error in the application of the enumerated

clause based on Taylor is too late for us to hear.

To summarize, Capozzi cannot clear the threshold

of establishing a Johnson II claim because he

cannot show that his sentence was "solely based"

on the residual clause. See Dimott, 881 F.3d at 237.

As a result, he pivots to arguing that if the court did

rely on the enumerated clause, it erred under

Taylor. But we lack jurisdiction to hear such a

claim, regardless of whether it relies on Mathis or

Taylor, as the statute of limitations on such a claim

has lapsed. For challenges to sentences brought

6 We need not determine whether the court relied on the residual

clause elsewhere because the four B&E convictions alone satisfy the

ACCA's three-felony minimum. See 18 U.S.C. § 924(e)(1).

United App.31

States v. Capozzi

based on Johnson II, AEDPA's statute of

limitations resets only as to those sentences

imposed in fact under the ACCA's residual clause,

not for those that purportedly should have been

imposed under the residual clause because their

imposition under another clause was flawed.

Because this case is one of the latter, and more than

a year has passed since the judgment of conviction

against [**13] him became final, AEDPA bars

federal courts from hearing Capozzi's ACCA claim.

court may, on a petition under 28 U.S.C. § 2255,

resentence on the remaining convictions." 112 F.3d

26, 30-31 (1st Cir. 1997) (emphasis added)

(footnotes omitted).

To explain how the district court abused its

discretion in the manner recognized in Rodriguez,

however, Capozzi points only to the government's

concession that "under current jurisprudence, the

Defendant would not be an [armed career

criminal]." He cites no cases that reverse a district

court for failing to conduct a de novo resentencing

after vacating an intertwined conviction, nor any in

B.

which a court ordered a resentencing because

This leaves only the resentencing issue. "We jurisprudential standards have evolved. Further,

review the district court's determination of the Capozzi presented the Rodriguez case and his

appropriate remedy for a § 2255 violation for abuse equitable argument to the court below, and the

of discretion." United States v. Torres-Otero, 232 record indicates that the court considered both in its

F.3d 24, 29-30 (1st Cir. 2000). This is an extremely decision. Thus, we cannot find that the court abused

deferential standard. See United States v. Walker, its considerable discretion on these facts by opting

665 F.3d 212 (1st Cir. 2001) ("An abuse of to correct Capozzi's sentence without doing so.

discretion occurs 'when a relevant factor deserving

of significant weight is overlooked, or when an

improper factor is accorded significant weight, or [*99] III.

when the court considers the appropriate mix of

factors, but commits a palpable error of judgment For the foregoing reasons, we affirm.

in calibrating the decisional scales.'" (quoting

United States v. Nguyen, 542 F.3d 275, 281 (1st

End of Document

Cir. 2008))).

After granting a § 2255 motion, a district court may

award one of four remedies: vacate the sentence,

order a de novo resentencing, grant a new trial, or

correct the sentence. 28 U.S.C. § 2255(b). Capozzi

admits that the district court had the discretion to

adjust his sentence, but he maintains that because

the sentence for his firearm-in-furtherance

conviction was "intertwined" with the other two

sentences, the court should have awarded him a

plenary resentencing. In support, he relies on

language from our decision in United States v.

Rodriguez, in which we held that "where the

Guidelines contemplate an interdependent [**14]

relationship between the sentence for the vacated

conviction and the sentence for the remaining

convictions -- a sentencing package -- a district

Case: 22-1243

Document: 00118343736

Page: 1

Date Filed: 09/23/2025

Entry ID: 6752784

App.32

United States Court of Appeals

For the First Circuit

_____________________

No. 22-1243

UNITED STATES,

Appellee,

v.

DEREK CAPOZZI,

Defendant - Appellant.

__________________

Before

Barron, Chief Judge,

Selya,* Howard, Gelpí, Montecalvo, Rikelman, and Aframe

Circuit Judges.

__________________

ORDER OF COURT

Entered: September 23, 2025

The petition for rehearing having been denied by the panel of judges who decided the case,

and the petition for rehearing en banc having been submitted to the active judges of this court and

a majority of the judges not having voted that the case be heard en banc, it is ordered that the

petition for rehearing and the petition for rehearing en banc be denied.

By the Court:

Anastasia Dubrovsky, Clerk

cc:

Derek Capozzi, Dana Lynne Goldblatt, Donald Campbell Lockhart, Robert Edward Richardson,

Mark Jon Grady

*

Judge Selya heard oral argument in this case and participated in the initial semble thereafter. His

death on February 22, 2025, ended his involvement in this case.

App.33

(1) In the case of a person who violates section 922(g)

of this title and has three previous convictions by any court

referred to in section 922(g)(1) of this title for a violent

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

occasions different from one another, such person shall be

fined not more than $25,000 and imprisoned not less than

fifteen years, and, notwithstanding any other provision of

law, the court shall not suspend the sentence of, or grant a

probationary sentence to, such person with respect to the

conviction under section 922(g)

(2) As used in this subsection-(A) the term "serious

drug offense" means-(i) an offense under the Controlled

Substances Act (21 U.S.C. 801 et seq.), the Controlled

Substances Import and Export Act (21 U.S.C. 951 et seq.),

or the Maritime Drug Law Enforcement Act (46 U.S.C.

App. 1901 et seq.), for which a maximum term of

imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture or

distribute, a controlled substance (as defined in section 102

of the Controlled Substances Act (21 U.S.C. 802)), for which

a maximum term of imprisonment of ten years or more is

prescribed by law;

(B) the term "violent felony" means any crime

punishable by imprisonment for a term exceeding one year,

or any act of juvenile delinquency involving the use or

carrying of a firearm, knife, or destructive device that

would be punishable by imprisonment for such term if

committed by an adult, 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 presents a serious potential risk of physical injury to

another; and

App.34

(C) the term "conviction" includes a finding that a

person has committed an act of juvenile delinquency

involving a violent felony.

18 U.S.C. § 924(e) (1998)

(a) A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States,

or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed the

sentence to vacate, set aside or correct the sentence.

(b) Unless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no

relief, the court shall cause notice thereof to be served upon

the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of fact

and conclusions of law with respect thereto. If the court

finds that the judgment was rendered without jurisdiction,

or that the sentence imposed was not authorized by law or

otherwise open to collateral attack, or that there has been

such a denial or infringement of the constitutional rights of

the prisoner as to render the judgment vulnerable to

collateral attack, the court shall vacate and set the

judgment aside and shall discharge the prisoner or

resentence him or grant a new trial or correct the sentence

as may appear appropriate.

(c) A court may entertain and determine such motion

without requiring the production of the prisoner at the

hearing.

(d) An appeal may be taken to the court of appeals

from the order entered on the motion as from a final

judgment on application for a writ of habeas corpus.

App.35

(e) An application for a writ of habeas corpus in

behalf of a prisoner who is authorized to apply for relief by

motion pursuant to this section, shall not be entertained if

it appears that the applicant has failed to apply for relief,

by motion, to the court which sentenced him, or that such

court has denied him relief, unless it also appears that the

remedy by motion is inadequate or ineffective to test the

legality of his detention.

(f) A 1-year period of limitation shall apply to a

motion under this section. The limitation period shall run

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 in violation of the Constitution or laws of the United

States is removed, if the movant was prevented from

making a motion by such governmental action; (3) the date

on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by

the Supreme Court and made retroactively applicable to

cases on collateral review; or (4) the date on which the facts

supporting the claim or claims presented could have been

discovered through the exercise of due diligence.

(g) Except as provided in section 408 of the

Controlled Substances Act, in all proceedings brought

under this section, and any subsequent proceedings on

review, the court may appoint counsel, except as provided

by a rule promulgated by the Supreme Court pursuant to

statutory authority. Appointment of counsel under this

section shall be governed by section 3006A of title 18.

(h) A second or successive motion must be certified

as provided in section 2244 by a panel of the appropriate

court of appeals to contain—(1) newly discovered evidence

that, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would

have found the movant guilty of the offense; or (2) a new

App.36

rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was

previously unavailable.

28 U.S.C. § 2255

No.

IN THE

SUPREME COURT OF THE UNITED STATES

Derek Capozzi

— PETITIONER

(Your Name)

VS.

United States

— RESPONDENT(S)

PROOF OF SERVICE

Dana Goldblatt

I,

, do swear or declare that on this date,

25

December 22

, 20

, as required by Supreme Court Rule 29 I have

served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding

or that party’s counsel, and on every other person required to be served, by depositing

an envelope containing the above documents in the United States mail properly addressed

to each of them and with first-class postage prepaid, or by delivery to a third-party

commercial carrier for delivery within 3 calendar days.

The names and addresses of those served are as follows:

AUSA Donald Lockhart

1 Courthouse Way, Suite 9200

Boston, MA 02210

I declare under penalty of perjury that the foregoing is true and correct.

Executed on

December 22

, 20 25

(Signature)