The opinion of the court was delivered by: Steven J. McAuliffe United States District Judge
Petitioner was convicted, based on his guilty plea, of one count of failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act ("SORNA"). He was sentenced to twelve months and one day of incarceration followed by lifetime supervised release. Petitioner now seeks relief under the provisions of 28 U.S.C. § 2255.
Section 2255 provides relief "only when the petitioner has demonstrated that his sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." Moreno-Moreno v. United States, 334 F.3d 140, 148 (1st Cir. 2003) (internal quotation marks omitted). The fourth category "includes only assignments of error that reveal fundamental defects which, if uncorrected, will result in a complete miscarriage of justice, or irregularities that are inconsistent with the rudimentary demands of fair procedure." Id. A petition under § 2255 may be decided without a hearing "as to those allegations which, if accepted as true, entitle the movant to no relief, or which need not be accepted as true because they state conclusions instead of facts, contradict the record, or are inherently incredible."*fn1 United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993).
Petitioner was convicted in 1984 in California of one count of lewd or lascivious acts with a child under the age of fourteen in violation of California Penal Code § 288(a). While in California, he registered as a sex offender. He moved to New Hampshire in 2008 but failed to register as a sex offender.
A criminal complaint was filed against petitioner in this district on February 18, 2010, for failing to register as a sex offender, as required, in violation of SORNA, 18 U.S.C. § 2250(a), United States v. Anderson, 10-cr-56-SM (D.N.H. Feb. 18, 2010), and a grand jury later returned an indictment against petitioner on April 21, 2010, charging him with violating § 2250(a).
Petitioner entered into a plea agreement, under the terms of which he pled guilty to the charge of knowingly failing to register as a sex offender. Petitioner was sentenced on September 8, 2010, and judgment was entered the same day.
Petitioner appealed the supervised release portion of his criminal sentence. He was represented by new counsel on appeal. On September 27, 2011, the court of appeals summarily affirmed the sentence imposed. The Supreme Court denied defendant's petition for a writ of certiorari.
Petitioner contends that his conviction and sentence as a tier III offender who failed to register in violation of § 2250(a) must be vacated, because his guilty plea was neither knowingly nor voluntarily entered and because his trial and appellate counsel provided ineffective assistance. In support, he argues that he was not guilty of violating § 2250(a) because his original California conviction, considered from a categorical perspective, and without reference to the underlying facts, did not qualify him as a "sex offender" as that term is used in SORNA and, in addition, he did not qualify as a tier III offender, as that term is used in SORNA. As a result, he contends, he was not required to register as a sex offender in New Hampshire, should not have pled guilty to an offense he did not commit, and, had he been properly counseled, he would not have pled guilty.
Section 2250(a) makes it a crime for someone who is required to register under SORNA to travel in interstate or foreign commerce and knowingly fail to register or update a registration that is required under SORNA. SORNA's registration requirements apply to "sex offender[s]," 42 U.S.C. § 16913(a), that is, individuals "convicted of a sex offense," 42 U.S.C. § 16911(1). A "sex offense" is defined in § 16911(5)(A)(ii) to include "a criminal offense that is a specified offense against a minor." Specified offenses against a minor include "criminal sexual conduct involving a minor," § 16911(7)(H), and "any conduct that by its nature is a sex offense against a minor," § 16911(7)(I).
Sex offenders are classified by the statute as tier I, tier II, or tier III offenders, depending on the severity of the underlying offense. § 16911(2),(3) & (4); United States v. Felts, 674 F.3d 599, 605 (6th Cir. 2012). An offender's tier classification determines the length of SORNA's registration requirement. 42 U.S.C. § 16915(a). Tier III offenders, who must register for life, are those whose underlying offense is punishable by more than one year of imprisonment and, among other things, "is comparable to or more severe than . . . (i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18); or (ii) abusive sexual contact (as described in section 2244 of Title 18) against a minor who has not attained the age of 13 years." § 16911(4)(A).
As noted, petitioner pled guilty to and was convicted of violating California Penal Code § 288(a). "[S]section 288(a) is violated by 'any touching' of an underage child committed with the intent to sexually arouse either the defendant or the child." People v. Martinez, 903 P.2d 1037, 1041 (Cal. 1995). Petitioner engaged in sexual intercourse with, and molested, at least one child who was ten years old. Accordingly, he necessarily concedes that the underlying facts of his § 288(a) conviction easily meet the pertinent SORNA definitions, and support his federal conviction.
Petitioner contends, however, that viewing his predicate § 288(a) conviction from a categorical perspective (that is, considering the elements of a § 288(a) offense alone, without reference to the underlying facts), it is clear that the state conviction does not support his classification as a "sex offender" under SORNA. He argues that the provisions of § 288(a), taken literally, broadly criminalizes mere "touching," such as rubbing a child's back, if the touching is accompanied by a subjective sexual motive - conduct that does not constitute a "sex offense" as defined by § 16911(7)(H), which requires sexual conduct, not mere physical contact accompanied by impure motives. With respect to § 16911(7)(I), petitioner asserts, in a cursory manner, that the definition is unconstitutionally vague, but he does not suggest that the elements of § 288(a) do not meet that definition. So, petitioner appears to concede that his conviction under § 288(a) would qualify as a sex offense under § 16911(7)(I).
Alternatively, petitioner argues that under a strict categorical approach, considering only the elements of § 288(a), the government could not prove that he was a tier III offender (which carries a lifetime registration requirement). In support, he contends that the elements of § 288(a) cover actions that do not constitute sexual abuse or sexual conduct, as required under § 16911(4). Absent the lifetime registration requirement imposed on tier III offenders, petitioner, again, would not have been required to register as a sex offender in New Hampshire, and so would not have violated § 2250(a) by failing to register.
The government counters that because petitioner did not raise the involuntary plea issue on direct appeal, he has procedurally defaulted the issue for purposes of § 2255. The government asserts that petitioner cannot avoid his procedural default nor can he establish ineffective assistance of counsel under the applicable legal standard. Petitioner replies that the procedural default rule should not be given effect in the circumstances of his case.
A. Procedural Default "In order to pass constitutional muster, a guilty plea must be both knowing and voluntary." United States v. Jiminez, 498 F.3d 82, 85 (1st Cir. 2007). "[T]he voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley v. United States, 523 U.S. 614, 621 (1998); Oakes v. United States, 400 F.3d 92, 95-96 (1st Cir. 2005). Therefore, a petitioner seeking review under § 2255 has procedurally defaulted his claim if he fails to first seek direct review, and a procedurally defaulted claim may be considered for habeas relief "only if the ...