RICHARD DIMOTT; WAYNE N. COLLAMORE; CHARLES H. CASEY, JR.; Petitioners, Appellants,
UNITED STATES, Respondent, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge, Hon. D.
Brock Hornby, U.S. District Judge]
Beneman, Federal Public Defender, for appellants.
M. Lipez, Assistant United States Attorney, with whom Richard
W. Murphy, Acting United States Attorney, was on brief, for
Howard, Chief Judge, Torruella and Lynch, Circuit Judges.
consolidated appeal arises from the denials of three federal
post-conviction relief petitions filed under 28 U.S.C. §
2255. Richard Dimott, Wayne N. Collamore, and Charles H.
Casey, Jr., each pled guilty to a federal firearm offense and
had a history of Maine state burglary convictions. On
collateral review, all three allege that they no longer
qualify for a sentence enhancement under the Armed Career
Criminal Act ("ACCA") because the ACCA's
residual clause was invalidated by Johnson v. United
States, 135 S.Ct. 2251 (2015) ("Johnson
petitioner filed his federal habeas petition outside of the
one-year statute of limitations under 28 U.S.C. §
2255(f)(1). All three nevertheless contend on appeal that
their petitions are timely under 28 U.S.C. § 2255(f)(3)
because Johnson II, which is retroactively
applicable, is the source of their claims. Specifically,
Dimott, Collamore, and Casey argue that they were sentenced
pursuant to the ACCA's (now-void) residual clause, so
their sentences must be vacated, and they cannot be
resentenced under the ACCA's enumerated clause in light
of Mathis v. United States, 136 S.Ct. 2243 (2016),
case that is not retroactively applicable.
district courts in all three cases dismissed the petitions on
procedural grounds. We affirm the dismissals. All three
petitions are untimely because they raise Mathis,
not Johnson II claims, and Mathis does not
reset the one-year statute of limitations under §
2255(f)(3). The petitioners have no Johnson II
claims because they have not shown that their original ACCA
sentences were based solely on the residual clause.
first determine, as to each petitioner, whether the district
court sentenced him pursuant to the enumerated or (the
separate) residual clause of the ACCA. Accordingly, we give
the relevant procedural history of each case. A.
Dimott pled guilty to one count of being a felon in
possession of a firearm on March 30, 2007, in violation of 18
U.S.C. §§ 922(g)(1) and 942(e). Based on his eight
previous state convictions in Maine for burglary,
see Me. Rev. Stat. Ann. tit. 17-A, § 401, the
district court concluded that Dimott qualified for the
sentencing enhancement under the ACCA, but did not specify
under which clause -- enumerated or residual -- it was
sentencing him. On September 6, 2007, the district judge
sentenced Dimott to 150 months of imprisonment and five years
of supervised release. Dimott did not appeal his sentence.
nine years after his conviction, Dimott filed a motion to
correct his sentence under 28 U.S.C. § 2255 on June 27,
2016. This was within one year of the Supreme Court's
decision in Johnson II. Dimott argued that his
convictions for Maine burglary cannot be the basis for his
ACCA sentence because the Supreme Court's 2016 decision
in Mathis made clear that Maine burglary is
nongeneric and thus did not fall under the enumerated clause,
and Johnson II invalidated sentences that were based
on the ACCA's residual clause.
district court denied Dimott's habeas petition for being
untimely. The same judge who had sentenced Dimott earlier
under the ACCA, rejected the petition:
Johnson II is understood to be one such decision
newly recognizing a right that is retroactively applicable .
. . . However, Dimott was deemed eligible for an ACCA
sentence based only on burglary convictions, which
qualify under ACCA's "enumerated clause."
. . . Dimott's reliance on Mathis is also
misplaced. In contrast to Johnson II,
Mathis has not been recognized as a case that
announced a new substantive rule that is retroactively
applicable to cases on collateral review.
Dimott v. United States, Nos. 2:06-cr-26,
2:16-cv-347, 2016 WL 6068114, at *2-3 (D. Me. Oct. 14, 2016)
(emphasis added). The district court issued Dimott a
certificate of appealability, and he filed this appeal on
October 21, 2016.
N. Collamore pled guilty on December 21, 2010, to one count
of escape from the custody of the United States Bureau of
Prisons, in violation of 18 U.S.C. § 751(a), and one
count of being a felon in possession of a firearm. Based on,
inter alia, his five previous state convictions for Maine
burglary, the district court found Collamore to be an armed
career criminal, again without specifying under which clause
of the ACCA. On March 23, 2011, the sentencing judge imposed
five years of imprisonment for the escape count, and a
concurrent 210 months of imprisonment -- based on the ACCA
enhancement -- for the firearm count. Collamore did not
appeal his sentence.
than five years after his conviction and sentencing,
Collamore filed a § 2255 motion on May 19, 2016, arguing
that his ACCA predicates were invalid post-Mathis.
The reviewing judge, who was also Collamore's sentencing
judge, denied Collamore's habeas petition for being
untimely. That judge specifically cited the Dimott
decision to explain the dismissal:
This Court has recently had occasion to consider whether
Mathis triggered a new one-year period for habeas
relief under 28 U.S.C. § 2553(f)(3). In Dimott,
this Court concluded that it did not. This Court also
concluded that Johnson II does not provide a basis
to challenge the status of convictions that were deemed to
fall within ACCA's enumerated clause, as opposed to the
now-invalidated residual clause.
Collamore v. United States, Nos. 2:16-cv-259,
2:10-cr-158, 2016 WL 6304668, at *2 (D. Me. Oct. 27, 2016)
(internal citations omitted). The district court issued a
certificate of appealability, and this appeal was docketed on
October 31, 2016.
H. Casey, Jr., pled guilty to being a felon in possession of
a firearm on April 27, 2012. The district court found that
Casey qualified for an ACCA sentencing enhancement based on,
inter alia, his three prior convictions in Maine for
burglary, without specifying which ACCA clause was involved,
and sentenced Casey to 180 months of imprisonment. Casey did
not appeal his sentence.
four years after his conviction and sentencing, Casey filed a
§ 2255 motion on June 27, 2016, collaterally attacking
his sentence. The same judge who had sentenced Casey, heard
the petition. Casey argued that his Maine burglary
convictions did not constitute predicate offenses under the
ACCA. The Government responded that Casey's petition was
barred because his Johnson II claim was procedurally
defaulted. The district court agreed with the Government and
found that Casey failed to demonstrate that his procedural
default would unfairly prejudice him "[b]ecause extant
First Circuit caselaw holds that Casey's prior Maine
burglary convictions remain qualifying enumerated
violent felonies even after Johnson's invalidation of the
the Government did not raise -- and the district court did
not address -- either the timeliness issue or the merits of
whether the Maine burglary statute was generic, the
certificate of appealability, requested by Casey, touched
indirectly on both:
Casey's petition raises the following issues: (1) whether
the retroactive application of Johnson allows any
petitioner serving an ACCA sentence to have his qualifying
"violent felony" convictions re-examined even if
those convictions appear to fall under the ACCA's
enumerated clause; and (2) if so, whether Mathis has
effectively overruled the First Circuit's decision . . .
that a Maine burglary conviction . . . qualifies as a violent
felony under ACCA's enumerated clause.