Gillette v. United States of America
Filing
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ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Signed by Judge William K. Sessions III on 3/25/2015. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
UNITED STATES OF AMERICA,
v.
JAMES GILLETTE,
Defendant.
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Case No. 06-cr-118
Opinion and Order
Defendant James Gillette moves to correct his sentence
under the Armed Career Criminal Act (“ACCA”) pursuant to 28
U.S.C. § 2255.
ECF No. 77.
Mr. Gillette argues he should be
resentenced pursuant to the “new rule” recognized in Descamps v.
United States, 133 S. Ct. 2276 (2013) because two of his prior
burglary convictions do not qualify as ACCA predicate offenses.
ECF No. 77 at 2.
rule.
I.
Descamps, however, did not recognize a new
Mr. Gillette’s motion is denied as untimely.
Factual and Procedural Background
Mr. Gillette was indicted on October 19, 2006.
On March
19, 2007 he pled guilty to one count under 18 U.S.C. §
921(g)(1), which charged him with possessing a firearm after he
was convicted of a felony.
The Presentence Report (“PSR”)
determined that Mr. Gillette had been convicted of three prior
violent felonies as the term is used in the ACCA, namely
burglaries in Connecticut, New Hampshire, and North Carolina.
See 18 U.S.C. §§ 924(e)(1), 924(e)(2).
After the PSR was filed,
Mr. Gillette moved to withdraw his guilty plea but eventually
withdrew that motion.
Mr. Gillette did, however, continue to
challenge the PSR’s conclusion that the ACCA applied in his
case.
On December 21, 2007, this Court issued a Memorandum
Decision on Sentencing Issues, in which it rejected Mr.
Gillette’s constitutional challenges to the application of the
ACCA and his argument that the New Hampshire burglary conviction
did not qualify as a predicate offense.
On the same day, the
Court determined the ACCA applied and sentenced Mr. Gillette to
150 months imprisonment.
This sentence was 30 months below the
mandatory minimum in order to give Mr. Gillette credit for time
he served in Vermont state custody on a related conviction for
burglarizing a residence in Springfield, Vermont.
Mr. Gillette
did not appeal the Court’s judgment.
II.
Discussion
Mr. Gillette was sentenced and judgment was entered on
December 21, 2007.
His conviction became final when his time
for filing a direct appeal expired, in early January 2008.
Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005).
28
U.S.C. § 2255(f) prescribes a one-year period of limitation for
motions to vacate, set aside, or correct a sentence that
ordinarily begins to run when the judgment of conviction becomes
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final.
Mr. Gillette did not file the instant motion until June
20, 2014, well after the ordinary statute of limitations
expired.
Mr. Gillette argues that his motion falls under 28 U.S.C. §
2255(f)(3), which provides a later period of limitation.
The
triggering event is “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.”
Id.
New substantive rules generally apply retroactively to
convictions that are already final.
U.S. 348, 351-52 (2004).
Schriro v. Summerlin, 542
Substantive rules include “decisions
that narrow the scope of a criminal statute by interpreting its
terms” and “constitutional determinations that place particular
conduct of or persons covered by the statute beyond the State’s
power to punish.”
Id.
According to Mr. Gillette, his motion is timely because the
Supreme Court announced a new substantive rule in Descamps v.
United States, 133 S. Ct. 2276 (2013) (decided June 20, 2013)
and his motion was filed within one year of that decision (on
the exact one-year anniversary).
The Court disagrees, as
Descamps affirmed a consistent and unbroken thread of prior
decisions rather than announcing a new rule.
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Previously in Taylor v. United States, 495 U.S. 575 (1990),
Shepard v. United States, 544 U.S. 13 (2005), Nijhawan v.
Holder, 557 U.S. 29 (2009), and Johnson v. United States, 559
U.S. 133 (2010) the Court developed and clarified the
“categorical approach” for determining whether a past conviction
is a violent felony for purposes of the ACCA.
The categorical
approach requires courts to compare the elements of the statute
forming the basis of the defendant’s conviction with the
elements of the “generic” crime.
82.
Descamps, 133 S. Ct. at 2281-
A variant of this method, the “modified categorical
approach,” permits a court to do this in a particular way when a
so-called “divisible” statute, one setting out one or more
elements of the offense in the alternative, is involved.
Id.
The modified categorical approach permits sentencing courts to
consult a limited class of documents, such as indictments and
jury instructions, to determine which alternative formed the
basis of the defendant’s prior conviction.
Id.
In Descamps the Court considered whether a sentencing court
may also consult these additional documents when a defendant was
convicted under an “indivisible statute,” i.e. one not
containing alternative elements, that criminalizes a broader
swath of conduct than the generic offense.
The Supreme Court
explained that permitting such a result would contravene its
prior decisions and the principles underlying them and therefore
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held that sentencing courts may not apply the modified
categorical approach when the crime of which the defendant was
convicted has a single, indivisible set of elements.
Id.
To
hold otherwise would entirely undermine the categorical inquiry.
Id. at 2292-93.
Justice Kagan’s opinion for the Court is clear that the
principles underlying its holding were preordained by its prior
decisions.
The Court recognized at the outset that its caselaw
“all but resolve[d]” the issue before it.
Id. at 2283.
After
walking through its prior decisions the Court noted that the
modified categorical approach “merely helps implement the
categorical approach” and explained that this is the “only way
[the Court has] ever allowed” it to be applied.
Id. at 2285.
Justice Kagan is highly critical of the Ninth Circuit’s contrary
analysis which, she notes, “dismiss[ed] everything we have said
on the subject,” id. at 2286, had “no roots in our precedents,”
id. at 2287, and “flout[ed] our reasoning,” id. at 2288.
The
message is clear: the Supreme Court had already resolved the
general contours of the categorical approach well before
Descamps, but nevertheless provided additional clarification on
its application in order to bring the courts that had
misconstrued its precedents back in line.
Although the Second Circuit has yet to comment on whether
Descamps announced a new rule, dozens of courts around the
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country have reached the same conclusion as this Court that
Descamps did not announce a new rule or recognize a new right
authorizing collateral attacks on ACCA sentences that are
already final.
See, e.g., Ezell v. United States, 778 F.3d 762,
766 (9th Cir. 2015) (“The Supreme Court did not announce a new
rule in Descamps.”); In re Jackson, 776 F.3d 292, 296 (5th Cir.
2015) (“Nothing in Descamps indicates that its holding announced
a new rule that was constitutionally based, and Descamps did not
announce that its holding applied retroactively to cases on
collateral review.”); Nipper v. Warden, FCC Coleman-Medium, __
Fed. App’x __, 2015 WL 106855, at *2 (11th Cir. Jan. 8, 2015)
(“Neither the Supreme Court nor this court has held that
Descamps applies retroactively on collateral review.”); United
States v. Davis, 751 F.3d 769, 775 (6th Cir. 2014) (“The Supreme
Court in Descamps explained that it was not announcing a new
rule, but was simply affirming the Taylor/Shepard approach,
which some courts had misconstrued.”); United States v. Montes,
570 Fed. App’x 830, 831 (10th Cir. 2014) (“We agree with the
district court, however, that the Descamps decision did not
recognize a new right.”); United States v. Davis, No. 1:02-cr64-jgm-1, 2015 WL 1097384, at *6 (D. Vt. March 11, 2015)
(“[M]any courts have concluded that Descamps did not create a
new constitutional right.
[And] the Supreme Court has not
declared Descamps retroactively applicable to cases on
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collateral review.”); Ellis v. Quay, __ F. Supp. 3d __, 2015 WL
687459, at *5 (D. Conn. Feb. 18, 2015) (“As the First Circuit
has already (and correctly) ruled, Descamps does not announce a
rule of constitutional law, much less a rule of constitutional
law that the Supreme Court has made retroactive to cases on
collateral review.”); Spells v. United States, Nos. 14-cv3774(PKC), 04-cr-1304(PKC), 2014 WL 5520691, at *1 (S.D.N.Y.
Oct. 29, 2014) (“In its previous opinion, the Court held that
Descamps does not apply retroactively.”).
Although the government does not dispute that Descamps
involved a substantive rule with retroactive effect, the Court
need not reach the question of whether the Supreme Court’s
decision is in fact retroactive because the Court is persuaded
that Descamps did not recognize a new right.
The government acknowledges that section 2255’s limitations
period is subject to equitable tolling but argues that Mr.
Gillette did not pursue his rights diligently, nor has he shown
that “‘some extraordinary circumstance stood in his way’ and
prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649
(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Therefore, equitable tolling should not excuse Mr. Gillette’s
untimely petition.
The Court agrees.
Mr. Gillette has neither
argued nor demonstrated that he is entitled to equitable
tolling.
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Mr. Gillette does argue, however, that even if his claim is
untimely or procedurally barred the Court may still hear it
because his continued incarceration under the ACCA constitutes a
fundamental miscarriage of justice.
The Supreme Court has held
that “actual innocence” allows habeas petitioners to bypass the
one-year statute of limitations.
Ct. 1924, 1928 (2013).
McQuiggin v. Perkins, 133 S.
Mr. Gillette argues that the court
should follow the example of United States v. Duval, 957 F.
Supp. 2d 100, 114-115 (D. Mass. 2013) and consider the merits of
his argument even if they are barred because he is actually
innocent of his sentence.
This argument is misplaced, however,
because the Duval court’s reasoning relied on the fact that “an
intervening change in the law . . . created a novel claim.”
at 114.
Id.
Here, the court has already determined there is no
novel claim available to Mr. Gillette.
While it is true that the Second Circuit has decided that
the actual innocence exception applies to the sentencing phase
of noncapital cases, the defendant must show by clear and
convincing evidence that he is “actually innocent of the act on
which his harsher sentence was based.”
Spence v.
Superintendent, Great Meadow Correctional Facility, 219 F.3d
162, 171-72 (2d Cir. 2000).
This means he must demonstrate he
did not engage in the conduct for which he received a harsher
sentence.
Id.
The Second Circuit’s reasoning sounds in factual
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innocence, not legal innocence, consistent with the Supreme
Court’s reasoning in Schlup v. Delo, 513 U.S. 298 (1995), House
v. Bell, 547 U.S. 518 (2006), and McQuiggin, 133 S. Ct. 1924
(2013).
Mr. Gillette does not argue that he did not commit the
burglaries of which he was convicted that are the basis of his
ACCA sentence.
Rather his argument concerns the Court’s
interpretation and application of the ACCA and the state
statutes under which he was convicted.
These issues could have
been raised on direct appeal.
For the reasons described above, Mr. Gillette’s motion is
untimely and therefore denied.
Dated at Burlington, in the District of Vermont, this 25th
day of March, 2015.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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