Dimott v. United States

         APPEALS 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]

          David Beneman, Federal Public Defender, for appellants.

          Julia M. Lipez, Assistant United States Attorney, with whom Richard W. Murphy, Acting United States Attorney, was on brief, for appellee.

          Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         This 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 II").

         Each 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), ^[1] a case that is not retroactively applicable.

         The 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.

         I.

         We 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

         Richard 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.

         About 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.

         The 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.

         B. Collamore

         Wayne 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.

         More 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.

         C. Casey

         Charles 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.

         Nearly 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 residual clause."

         Although 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.

         Casey timely ...