United States District Court, D. New Hampshire
A. Kennedy, Esq.
J. McAuliffe United States District Judge
Matthew McDonald, seeks relief under the provisions of 28
U.S.C. § 2255. Petitioner argues that the decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
made retroactive in Welch v. United States, 136
S.Ct. 1257 (2016), invalidates the “residual
clause” of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), and Section
924(c) (prohibiting the use of a firearm during or in
relation to any “crime of violence” 18 U.S.C.
Government concedes that McDonald would qualify for relief on
his ACCA claim under ordinary circumstances, but suggests
that the claim need not be resolved in this case, given the
“concurrent sentence doctrine” (McDonald is also
serving an unchallenged concurrent life sentence for
carjacking). As for McDonald's § 924(c) claim, the
Government seeks dismissal on grounds that it is untimely.
For the reasons discussed below, Petitioners motion is
granted in part, and stayed in part.
The Concurrent Sentence Rule
was convicted in 1997 of numerous crimes including: robbery,
conspiracy to commit robbery, carjacking, felon in possession
of a firearm, and use of a firearm during a crime of
violence. He was sentenced to life in prison. The Government
correctly points out that, even granting petitioner the
relief he seeks, neither his term, nor the conditions of his
imprisonment, will change: he will remain in prison, serving
a life sentence. Accordingly, the government takes the view
that the concurrent sentence doctrine counsels against
resolving the limited claims raised in McDonald's
concurrent sentence rule provides that a sentencing error is
harmless if a defendant will not spend less time in prison
even if that error were corrected, because he is serving a
concurrent sentence of the same or greater length for another
conviction which was not challenged. While the rule remains
viable in this circuit, our Court of Appeals is “aware
of the disfavor that the Supreme Court cast upon the
concurrent sentence rule in Benton v. Maryland, 395
U.S. 784 (1969).” Vanetzian v. Hall, 562 F.2d
88, 90 (1st Cir. 1977). The Supreme Court has acknowledged
that the concurrent sentence rule may have “some
continuing validity as a rule of judicial convenience”
but, that equal concurrent sentences do not present a
jurisdictional bar to review. Benton, 395 U.S. at
791, 793. The Court noted that in a situation where a future
successful challenge to one sentence would require review of
the sentence presently challenged, it is “certainly
preferable” to conduct the review now, rather than
later. Id. at 793. In this case, while a future
successful challenge to McDonald's carjacking sentence is
unlikely, still, it seems preferable to resolve his pending
claims made now, rather than invoke the convenience of the
concurrent sentence rule.
Challenge to Sentence under 18 U.S.C. § 924(e)
first challenges his sentences on two counts of being a Felon
in Possession of a Firearm, imposed pursuant to the ACCA, 18
U.S.C. 924(e)(2)(B). That statute prescribes a minimum
sentence of fifteen years and a maximum sentence of life in
prison for a defendant with three prior “violent
felony” convictions. At the time of McDonald's
sentencing, a prior conviction qualified as a predicate
“violent felony” if it was for “burglary,
arson or extortion, [or] involve[d] use of explosives”
(referred to as the “enumerated crimes clause”);
“has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, ” (referred to as the
“elements clause”); or if the crime
“otherwise involves conduct that presents a serious
potential risk of physical injury to another” (referred
to as the “residual clause”). 18 U.S.C. §
924 (e)(2)(B)(i)-(ii). In Johnson v. United States,
the Supreme Court struck down the residual clause of §
924(e)(2)(B) as unconstitutionally vague. 135 S.Ct. at 2563.
Therefore, if any of McDonald's three prior
“violent crime” convictions can satisfy the
residual clause, but not the elements or the enumerated
crimes clause, of § 924(e), then his current sentence is
necessarily invalid, and McDonald is entitled to relief.
sentencing, the court adopted the presentence report (PSR)
and determined that McDonald was an Armed Career Criminal,
based on predicate Massachusetts convictions for Armed
Robbery; Manslaughter; and Assault and Battery with a
Dangerous Weapon. McDonald argues, and both the Government
and United States Probation Office agree, that at least one
of these convictions does not qualify as a “violent
felony” under the elements clause of the ACCA.
See Gov. Objection (document no. 7) at 1 n.1; U.S.
Probation Memo (document no. 4) at para. 1. Specifically, the
court of appeals for this circuit has authoritatively
determined that a Massachusetts Armed Robbery conviction does
not qualify as a predicate violent felony under the ACCA.
See United States v. Starks, 861 F.3d 306, 322 (1st
Cir. 2017). McDonald, then, does not have three qualifying
violent felony convictions, and the ACCA sentence enhancement
was inapplicable to him.Accordingly, the motion for sentence
relief under Johnson is necessarily granted.
McDonald's affected sentences will be reduced to the low
end of the correctly calculated applicable Guideline
Sentencing Range, and a revised judgement reflecting that
modification shall issue.
Challenge to Conviction Under 18 U.S.C. §924(c)
also challenges his two convictions for use of a firearm
during a crime of violence (18 U.S.C. § 924 (c)). The
Court of Appeals for the First Circuit granted petitioner
leave to file this second § 2255 petition because his
ACCA claim satisfied the prerequisites set out in 28 U.S.C.
§2255(h)(2). McDonald v. United States, No.
16-1870 (1st Cir. July 14, 2017) (ECF document no. 1-1).
However, the court took “no position whatsoever”
with respect to whether petitioner could properly raise
Johnson claims challenging his § 924(c)
sentence. Id. (quoting United States v.
MacDonald, 641 F.3d 596, 615 (4th Cir. 2011) (taking
position that the district court should “more closely
scrutinize each claim and dismiss those that are barred under
[§2255(h)]”) (internal quotations omitted).
second or successive petition may be certified for district
court consideration if it is based upon “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(2). Petitioner
does not directly demonstrate that his § 924(c)
challenge meets the requirements of § 2255(h)(2). He
argues, instead, that Johnson's holding
invalidating the residual clause of the ACCA, ...