Virginia G. Villa, Assistant Federal Defender on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and Thomas E. Delahanty, United States Attorney, on brief for appellee.
Before HOWARD, STAHL and THOMPSON, Circuit Judges.
HOWARD, Circuit Judge.
After James Damon pleaded guilty to possession of a firearm by a felon, the district court determined that he had two prior felony convictions for a crime of violence
and a controlled substance offense and accordingly sentenced him under a higher Guideline range. Two years later, in the wake of the Supreme Court's decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), we held in United States v. Holloway, 630 F.3d 252 (1st Cir.2011), that a Massachusetts conviction for assault and battery— one of Damon's two prior convictions on which the district court relied— is not categorically a crime of violence. Damon unsuccessfully moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We hold that Damon's claim is procedurally defaulted and therefore affirm the district court's denial of his petition.
On December 1, 2008, Damon pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). Following Damon's guilty plea, the Probation Office prepared a Presentence Report (PSR) that recommended a Guideline base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) on the basis of Damon's prior Massachusetts convictions for possession of marijuana with intent to distribute in 2005 and for assault and battery in 2006.
In his objections to the PSR, Damon did not challenge the designation of his assault-and-battery conviction as a crime of violence, nor did he object to it at his sentencing on May 12, 2009. At sentencing, following the PSR, the district court began with a base offense level of 24, added two levels for the number of firearms involved in the offense, and reduced by three levels for acceptance of responsibility to arrive at a total offense level of 23 and a corresponding Guideline range of 70 to 87 months' imprisonment. The court sentenced Damon to 70 months' imprisonment and three years' supervised release. Damon unsuccessfully appealed his sentence to this court, but did not mount any challenge to the district court's reliance on the Massachusetts assault-and-battery conviction as a crime of violence. See United States v. Damon, 595 F.3d 395 (1st Cir.2010).
Damon timely filed this section 2255 petition on February 14, 2011, not long after we, relying on the Supreme Court's decision in Johnson, held in Holloway that a Massachusetts conviction for assault and battery is not categorically a violent felony. Damon accordingly contended in his petition that his base offense level should have been 20, his total offense level 19, and his resulting Guideline range 46 to 57 months.
Agreeing with the magistrate judge's recommended decision, the district court denied Damon's petition on several grounds, including that Johnson and Holloway did not apply retroactively to cases on collateral review, that Damon's claim was procedurally defaulted, and that Damon's claim of Guideline error did not in any event allege a " complete miscarriage
of justice" cognizable under section 2255. The district court certified the following issues for appeal under 28 U.S.C. § 2253(c):
(1) whether Mr. Damon's claims are procedurally defaulted; (2) whether Johnson applies retroactively; (3) whether a guideline miscalculation that results in a sentence within the proper statutory range satisfies the complete miscarriage of justice standard; (4) whether a claim of actual innocence may be based on a legal as opposed [to] factual error; and (5) whether in the ...