FIRST CIRCUIT HABEAS CORPUS ALERT
FOR PERSONS SERVING ARMED CAREER
CRIMINAL AND CAREER OFFENDER SENTENCES
Federal Criminal Defense Note: Certain Defendants May Wish to Act Promptly to preserve a claim for vacating their sentences. Persons sentenced in the US District Courts under 924(e) and USSG §4B1 using Massachusetts assault and battery predicate convictions and other House-of-Corrections-sentenced predicates should make efforts to inquire of counsel. §2255 relief may be available to persons who were sentenced using certain minor offense predicates that the law no longer views as "crimes of violence". The legal definition of a "crime of violence" has changed and some offenses no longer qualify. By far, the largest group includes Massachusetts Assault and Battery convictions reciting "did assault and beat". US v. Holloway now disqualifies such convictions from sentencing enhancement.
CHANGE IN LAW WITH POSSIBLE RETROACTIVE APPLICATION DISQUALIFYING CERTAIN PREVIOUSLY QUALIFYING PREDICATE OFFENSES
The Federal Defender Office for Massachusetts, Rhode Island and New Hampshire has issued a memorandum to the bar suggesting possible retrospective application of First Circuit's decision in US v. Holloway, ___ F.3d ___, 2011 WL 183963 (1 Cir. Jan. 21, 2011), and the US Supreme Court's decision in Johnson, requiring that any ACCA predicate involve actual violence. Johnson v. US, 130 S. Ct. 1265 (2010)(held that a Florida battery offense did not qualify as a violent felony under the ACCA because court was unable to determine categorically that offense of battery involve purposeful violence). However - and this is an important caution - the deadline for filing for habeas relief in a motion for new trial under 28 USC §2255 may be limited to March 1, 2011.
A conflict exists between the Circuit Courts of Appeal, making US Supreme Court review likely. Presently, a minority of Circuits represented by the 9th Circuit hold that Johnson, supra, applies retroactively and the majority, lead by 7th Circuit, says that it does not. By filing a collateral attack now under 28 USC 2255, a defendant may preserve his rights once the United States Supreme Court rules on this conflict among the Circuits.
The following excerpts from today's FDO memorandum may be of interest in explaining the issue:
When determining whether a prior conviction is a violent felony for purposes of the Armed Career Criminal Act or a crime of violence for purposes of the career offender guideline, courts take a categorical approach. See Taylor v. United States, 495 U.S. 575, 600 (1990). Under this approach a court looks to the elements of the offense of conviction, not to the specific facts of the prior conviction being considered or the manner in which it was committed.
When a single statute covers multiple offenses, a court must determine which offense formed the basis of conviction. Under the “modified categorical approach,” the court may look to only a limited universe of information: the charging document, jury instructions, terms of a plea agreement, the factual basis agreed upon during a plea colloquy, or some comparable judicial record. Shepard v. United States, 544 U.S. 13, 26 (2005). If a statute covers both violent and non-violent offenses, and the court cannot determine from Shepard-approved sources the exact offense of conviction, the conviction cannot be deemed a violent felony or crime of violence.
Massachusetts G.L. ch. 265, § 13A prohibits assault and battery. Under Massachusetts common law, “battery” may be prosecuted on one of three theories: (1) harmful battery, (2) offensive battery, and (3) reckless battery. Defendants have often challenged the finding that a Massachusetts assault and battery conviction is a violent felony or crime of violence, arguing, for example, that an “offensive touching” battery is not violent, and that the Shepard-approved record (often simply a district court complaint) fails to disclose whether the defendant was prosecuted under a harmful battery or offensive battery theory. However, beginning with United States v. Mangos, 134 F.3d 460, 464 (1st Cir. 1998), the First Circuit has repeatedly held that the boilerplate charging language “did assault and beat” (see M.G.L. ch. 277, § 79, “Schedule of Forms and Pleadings”) alleges harmful battery and thus establishes that the conviction is a violent felony or crime of violence.
In United States v. Holloway, ___ F.3d ___, 2011 WL 183963 (1st Cir. January 21, 2011), the First Circuit overturned Mangos. In doing so the court has opened the door to challenges that assault and battery, and other crimes that include the elements of assault and battery, are not violent felonies or crimes of violence. Specifically, where the Massachusetts offense may be committed “recklessly,” and no Shepard-approved documents show that a “reckless theory” was not pursued, Holloway should preclude a finding that the offense is a violent felony or crime of violence.
As noted above, Massachusetts simple assault and battery convictions cannot after Holloway be deemed violent felonies or crimes of violence purely on the basis of the charging language “did assault and beat.” Other Massachusetts convictions may also be vulnerable under Holloway, based upon its ruling that reckless batteries do not qualify as violent felonies. Beyond simple assault and battery under M.G.L. ch. 265, § 13A, other varieties of Massachusetts assault and battery offenses may be
committed in a reckless manner under state law. The defendant should argue that the government must prove that the defendant was not convicted on a reckless theory.
Massachusetts courts have said that where the state legislature has not defined the assault and battery elements of another type of assault and battery crime, there is no basis for interpreting the assault and battery elements of that crime differently from the assault and battery elements in ch. 265, § 13A. See Commonwealth v. Correia, 50 Mass.App.Ct. 455 (2000)(assault and battery on a public employee under M.G.L. ch. 265, § 13D encompasses reckless assault and battery), citing Commonwealth v. Macey, 47 Mass.App.Ct. 42, 43 (1999)(conviction under assault and battery upon a child under M.G.L. ch. 265, § 13J is satisfied by reckless conduct) and United States v. Francis, 24 Mass.App.Ct. 576, 579-580 (1987)(instructions on assault and battery given generally, followed by instructions relating to assault and battery on a correction officer pursuant to M.G.L. ch. 127, § 38B). See also Commonwealth v. Montes, 49 Mass.App.Ct. 789 (2000)(court gave recklessness instruction in assault and battery on a police officer conviction where defendant swung shard of glass wildly and cut police officers).
Thus, even in the absence of a case specifically addressing a type of assault and battery offense, (and of course in the absence of caselaw to the contrary), it may be possible to argue that where the intent element for the assault and battery is not given by statute, state law indicates that a defendant may be convicted on a recklessness theory because the common law definitions applicable to simple assault and battery apply. One example of this would be assault and battery on an emergency medical technician, ambulance operator or ambulance attendant pursuant to ch. 265, § 13I. The government should have to then prove using Shepard documents that the defendant was not convicted on a recklessness theory.
Massachusetts offenses that appear vulnerable on recklessness theory
Assault and Battery on a Police Officer
The First Circuit has previously held that Massachusetts state convictions for assault and battery on a police officer qualify as crimes of violence, most recently in United States v. Santos, 363 F.3d 19 (1st Cir. 2004). The ruling in Santos was based largely on the career offender guideline’s residual clause and the court’s judgment that the offense posed a “serious risk of physical injury and violence.” Santos, however, was decided before Begay, and so before the Supreme Court had articulated the requirement that to qualify under the residual clause an offense must be “purposeful.” With Holloway’s recognition that state law controls, and its view that an offense with a mens rea of recklessness is not purposeful, there is a strong argument that Santos was wrongly decided.
Santos also discusses an earlier First Circuit case, United States v. Fernandez, 121 F.3d 777 (1st Cir. 1997) which asserted both that assault and battery on a police officer is a crime of violence, and that it involves purposeful conduct. Fernandez cited Commonwealth v. Moore, 36 Mass.App.Ct. 455 (1994), for the proposition that the offense is purposeful. The Massachusetts Appeals Court in Correia, decided after Moore, has said however that Moore is limited to the intentional aspect of
6 M.G.L. ch. 265, § 13D and is not controlling on the alternative definition of “reckless” assault and battery on a public employee. With Holloway’s recognition that state law controls, there is, again, a strong argument that Fernandez was wrongly decided.
Assault and Battery by Means of Dangerous Weapon
Other Massachusetts cases have found a reckless conduct theory applicable to assault and battery by means of dangerous weapon offenses (M.G.L. ch. 265, § 15A). See, e.g., Commonwealth v. Burno, 396 Mass. 622 (1986)(automobile case cited in Holloway); Commonwealth v. Cruzado, 73 Mass.App.Ct. 803 (2009)(automobile) Commonwealth v. Broderick, 16 Mass.App.Ct. 941 (1983)(gun); Commonwealth v. Fettes, 64 Mass.App.Ct. 917 (2005)(dog); Commonwealth v. Ferguson, 30 Mass.App.Ct. 580 (1991)(suggesting recklessness could be applicable in shod foot case).
The First Circuit has previously decided in United States v. Glover, 558 F.3d 71 (1st Cir. 2009) that a Massachusetts assault and battery by means of a dangerous weapon is a crime of violence. Among other things, the opinion says that the offense is purposeful, citing Commonwealth v. Ford, 424 Mass. 709 (1997). Ford characterizes the reckless form of assault and battery by means of a dangerous weapon as requiring the “intentional commission of a wanton or reckless act . . . causing physical or bodily injury to another” quoting Burno. Holloway provides grounds for arguing that the ruling in Glover cannot stand, particularly because Holloway uses Burno as grounds for its view that an offense with a recklessness mens rea is not purposeful. Holloway also rejected the government’s view that an “intentional commission of a wanton and reckless act” amounts to a purposeful offense.
The First Circuit may soon decide the continuing validity of Glover in a pending case, United States v. Dancy, No. 09-2628 (argued February 7, 2010). Dancy involves challenges to the designation of both an assault and battery with a dangerous weapon and an assault and battery on a police officer as violent felonies under the ACCA.
Another Massachusetts offense that can be committed recklessly and so is vulnerable to challenge if categorized as a violent felony or crime of violence is involuntary manslaughter (M.G.L. ch. 265, § 13). See Commonwealth v. Del Verde, 398 Mass. 288, 298, n.6 (1986) (“Involuntary manslaughter is an unlawful homicide unintentionally caused in either of two ways: ‘(1) in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life . . . or (2) by an act that constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.’”). The Holloway court’s approving citation of the Seventh Circuit case finding involuntary manslaughter not to be a crime of violence provides further support for this argument. See United States v. Woods, 576 F.3d 400, 412-13 (7th Cir. 2009), cited above.
Two offenses in M.G.L. Chapter 265 incorporate reckless conduct into their statutory language and so are susceptible to a Holloway challenge:
§ 13K. Assault, Abuse, Neglect and Financial
Exploitation of an Elderly or Disabled Person, and
§ 13L. Reckless Endangerment of Children.
* * * * *
Holloway is retroactively applicable to all cases still pending in the district court or on direct review. See, e.g., Crowe v. Bolduc, 365 F.3d 86, 93 (1st Cir. 2004). The First Circuit may be unlikely to find the decision applicable to cases on collateral review, however. In United States v. Giggey, 551 F.3d 27 (1st Cir. 2008) the First Circuit overruled itself to hold that burglary of a non-dwelling is not categorically a crime of violence. In the course of that decision, the court said that it would not apply retroactively:
Our decision to change course affects only the procedure by which a district court calculates a defendant's sentence. It does not “prohibit criminal punishment for certain types of primary conduct” or “forbid the imposition of certain categories of punishment for a particular class of defendants” and so is not a retroactive substantive change in the law. Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003) (discussing the rule from Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)). It also is not a “watershed” change in the law any more than United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which we held non-retroactive. Cirilo-Munoz v. United States, 404 F.3d 527, 532-33 (1st Cir. 2005).
However, the Eigth Circuit has held, in the career offender context, that Begay established a substantive rule retroactively applicable to cases on collateral review, see Sun Bear v. United States, 611 F.3d 925 (8th Cir. 2010); the Seventh Circuit, in the ACCA context, has held that Begay is retroactive, see United States v. Welch, 604 F.3d 408 (7th Cir. 2010); and the Tenth Circuit has held, in the ACCA context, that Chambers v. United States, 555 U.S. 122 (2009)(failure to report is not a violent felony) is retroactive, see United States v. Shipp, 589 F.3d 1084 (10th Cir. 2009).
A one-year statute of limitations applies to the filing of a motion for collateral relief under 28 U.S.C. § 2255. The year generally runs from the date when the conviction is final, that is, when certiorari is denied, or, if certiorari was not sought but an appeal was taken, the date when the time for filing a petition for certiorari would have lapsed (90 days after the court of appeals issued its judgment). If no appeal was filed, the year runs from the expiration of the time in which an appeal could have been filed (ten days after the judgment).
In some cases, the year can run from a later date: the date when the right asserted in the motion was initially and newly recognized by the Supreme Court. Obviously, the Holloway ruling itself is not a Supreme Court ruling, so that decision cannot reset the clock. However, it may be arguable that since Holloway derives from the Supreme Court ruling in Johnson, the statute of limitations should run from the Johnson decision. The date of the Johnson decision is March 2, 2010, so there is less than one month left in which to file a § 2255 petition for any defendant whose conviction became final more than one year ago.