Lead Opinion
This consolidated appeal arises from the denials of three federal post-conviction relief petitions filed under 28 U.S.C. § 2255. Richard Dimott, Wayne N. Collamore, and
Each petitioner filed his federal habeas petition outside of the one-year statute of limitations under 28 U.S.C. § 2255(f)(1). All three nevertheless contend on appeal that their petitions are timely under 28 U.S.C. § 2255(f)(3) because Johnson II, which is retroactively applicable, is the source of their claims. Specifically, Dimott, Collamore, and Casey argue that they were sentеnced pursuant to the ACCA’s (now-void) residual" clause, so their sentences must be vacated, and they cannot be resentenced under the ACCA’s enumerated clause in light of Mathis v. United States, — U.S. —,
The district courts in all three cases dismissed the petitions on procedural grounds. We affirm the dismissals. All three petitions are untimely because they raise Mathis, not Johnson II claims, and Mathis does not reset the one-year statute of limitations under § 2255(f)(3). The petitioners have no Johnson II claims because they have not shown that their original ACCA sentences were based solely on the residual clause.
I.
We first determine, as to each petitioner, whether the district court sentenced him pursuant to the enumerated or (the separate) residual clause of the ACCA. Accordingly, we give the relevant procedural history of each case.
A. Dimott
Richard Dimott pled guilty to one count of bеing a felon in possession of a firearm on March 30,2007, in violation of 18 U.S.C. §§ 922(g)(1) and 942(e). Based on his eight previous state convictions in Maine for burglary, see Me. Rev. Stat. Ann. tit. 17-A, § 401, the district court concluded that Dimott qualified for the sentencing enhancement under the ACCA, but did not specify under which clause—enumerated or residual—it was sentencing him. On September 6, 2007, the district judge sentenced Dimott to 150 months of imprisonment and five years of supervised release. Dimott did not appeal his sentence.
About nine years after his conviction, Dimott filed a motion to correct his sentence under 28 U.S.C. § 2255 on June 27, 2016. This was within one year of the Supreme Court’s decision in Johnson II. Dimott argued that his convictions for Maine burglary cannot be the basis for his ACCA sentence because the Supreme Court’s 2016 decision in Mathis made clear that - Maine burglary is nongeneric and thus did not fall under the enumerated clause, and Johnson II invаlidated sentences that were based on the ACCA’s residual clause.
The district court denied Dimott’s habe-as petition for being untimely. The same judge who had sentenced Dimott earlier under the' ACCA, rejected the petition:
Johnson II is understood to be one such decision newly recognizing a right that is retroactively applicable.... However,Dimott was deemed eligible for an ACCA sentence based only on burglary convictions, which qualify under ACCA’s “enumerated clause.” ... Dimott’s reliance on Mathis is also misplaced. In contrast to Johnson II, Mathis has not been recognized as a case that announced a new substantive rule that is retroactively applicable to cases on collateral review.
Dimott v. United States, Nos. 2:06-cr-26, 2:16-cv-347,
B. Collamore
, Wayne N. Collamorе pled guilty on December 21, 2010, to one count of escape from the custody of the United States Bureau of Prisons, in violation of 18 U.S.C. § 751(a), and one count of being a felon in possession of a firearm. Based on, inter alia, his five previous state convictions for Maine burglary, the district court found Collamore to be an armed career criminal, again without specifying under which clause of the ACCA. On March 23, 2011, the sentencing judge imposed five years of imprisonment for the escape count, and a concurrent 210 months of imprisonment— based on the ACCA enhancement—for the firearm count. Collamore did not appeal his sentence.
More than five years after his conviction and sentencing, Collamore filed a § 2255 motion on May 19, 2016, arguing that his ACCA predicates were invalid post-Mathis. The reviewing judge, who was also Col-lamore’s sentencing judge, denied Collar more’s habeas petition for being untimely. That judge specifically cited: the Dimott decision to explain the dismissal:
This Court has recently had occasion to consider whether Mathis triggered a new one-year period for habeas relief under 28 U.S.C. § 2553(f)(3). In Dimott, this Court concluded that it did not; This Court also concluded that Johnson II does not provide a basis to challenge the status of convictions that were deemed to fall within ACCA’s enumerated clause, as opposed to the now-invalidated residual clause.
Collamore v. United States, Nos. 2:16-cv-259, 2:10-cr-158,
C. Casey
Charles H. Casey, Jr.,- pled guilty to being a felon in possession of a firearm on April 27, 2012. The district court found that Casey qualified for an ACCA sentencing enhancement based on, inter alia, his three prior convictions in Maine for burglary, without specifying which ACCA clause was involved, and sentenced • Casey to 180 months of imprisonment. Casey did not appeal his sentence.
Nearly four years after his conviction and sentencing, Casey filed a § 2255 motion on June 27, 2016, collaterally attacking his sentence. The same judge who had. sentenced Casey, heard the petition. Casey argued that his Maine burglary convictions did not constitute predicate offenses under the ACCA. The Government responded that Casey’s petition was barred because his Johnson II claim was procedurally defaulted. The district court agréed with the Government and found that Casey failed to demonstrate that his procedural default would unfairly prejudice him “[bjecause extant First Circuit caselaw holds that Casey’s prior Maine burglary convictions remain qualifying enumerated violent felonies even after Johnson’s invalidation of the residual clause.”
Although the Government did not raise—and the district court did not address—either the timeliness issue or the merits of whether the Maine burglary statute was generic, the certifícate of appeala-bility, requested by Casey, touched indirectly on both:
Casey’s petition raises the following issues: (1) whether the retroactive application of Johnson allows any petitioner serving an ACCA sentence to have his qualifying “violent felony” convictions re-examined even if those convictions appear to fall under the ACCA’s enumerated clause; and (2) if so, whether Mathis has effectively overruled the First Circuit’s decision ... that a Maine burglary conviction ... qualifies as a violent felony under ACCA’s enumerated clause.
Casey timely filed this appeal.
II.
Dimott, Collamore, and Casey argue on appeal that the district courts erred in denying their petitions because they were sentenced pursuant to the ACCA’s (now-void) residual clause. We review de novo the district courts’ denials of their habeas petitions on procedural grounds. See Wood v. Spencer,
Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) “in part to combat increasingly pervasive abuses of the federal courts’ ha-beas jurisdiction.” Delaney v. Matesanz,
More than one year had passed between the time each petitioner’s conviction became final and the date on which each petitioner filed his § 2255 motion. As such, for their petitions to be timely, Dimott, Collamore, and Casey must demonstrate that (1) their claims arise from a right that “has been newly recognized by the Supreme Court and made retroactively applicable,” and that (2) they filed within one year of the Supreme Court’s decision recognizing that right. Id. Each petitioner argues that Johnson II—which the Supreme Court held is retroactively applicable on collateral review, see Welch v. United States, — U.S. —,
A. Dimott and Collamore
We find it plain that Dimott’s and Colla-more’s petitions do not raise Johnson II challenges because the record reflects that they were sentenced under the ACCA’s enumerated clause, not the residual clause. As such, we need not delve into the merits
On collateral review, the district court judge in both cases (who had also served as the sentencing judge) found that Dimott and Collamore had earlier been sentenced pursuant to the ACCA’s enumerated clause. See Collamore,
Although these findings were made during the collateral review process, and not expressly stated at the time of sentencing, we give them due weight because the ha-beas judge was describing his own decisions at sentencing. Cf. United States v. DiCarlo,
Because they were sentenced pursuant to the ACCA’s enumerated clause, Dimott and Collamore are, at most, asserting a claim about Mathis. In fact, the linchpin of both petitioners’ argument is that Mathis dictates that Maine burglary is a nongen-eric offense, so it cannot qualify as an ACCA predicate. The Supreme Court has indicated, though, that Mathis did not announce a new, retroactively applicable rule. See
To circumvent the statute of limitations, Dimott and Collamore try to pass off their Mathis claims under the guise of Johnson II claims, but their argument is foiled by a logical misstep. In order to even arguably invoke Johnson II, they must first succeed in arguing—on the merits—that their ACCA enhancement relies on the residual clause because Mathis renders Maine burglary a nongeneric offense. That is the essence of a Mathis challenge. To hold otherwise would create an end run around AEDPA’s statute of limitations. It would allow petitioners to clear the timeliness bar by bootstrapping their Mathis claims onto Johnson II claims, even where, as here, the merits of their case entirely depend on whether their previous convictions
B. Casey
The remaining petitioner, Casey, presents a somewhat different case because (1) the Government failed to assert the timeliness defense before the district court, and (2) the record is silent as to which ACCA clause—enumerated or residual—the district court earlier relied on. Regardless, Casey’s petition is timе-barred for the same reason as the other two petitions: it raises a Mathis, not a Johnson II, challenge.
1. Forfeiture
The Government failed to argue be-. fore the district court that Casey’s petition was untimely, relying instead on another procedural bar: that Casey had defaulted his- Johnson II claim. On appeal, Casey attempts to use the Government’s omission as a fehield against AEDPA’s strict statute of limitations and argues that the government may no longer raise the timeliness issue on appeal.
We disagree that the Government’s inadvertence is fatal to applying the timeliness bar here. The Supreme Court has repeatedly recognized the power of federal courts to raise sua sponte the timeliness of habeas petitions. See Wood v. Milyard,
The dissent asserts that appellate courts may excuse the Government’s waiver only if the Government provеs that the case is “exceptional.” But that is a misreading of Wood.
That is not the situation here. Assuming arguendo that similar concerns govern federal
Moreover, unlike in Wood, the certificate of appealability arguably raised the timeliness issue, and the Government did brief it on appeal and argue that it did not waive the timeliness bar. In fact, the crux of the Government’s position is that petitioners cannot reset the one-year statute of limitations using § 2255(f)(3) because they fail to raise Johnson II claims. As such, we would not be rewarding the Government for any gamesmanship before the district court if we were to bypass its failure to raise the untimeliness defense at the outset before the district judge.
There is also no issue of procedural fairness. Casey, the losing party in district court on other grounds, had ample notice of the timeliness defense—beginning with the issues raised in the certificate of ap-pealability—and the opportunity to actually respond, both as to briefing and during oral argument before this court, which he has done. We would, by reaching the timeliness issue,, further “[t]he considerations of comity, finality, and the expeditious handling of habeas proceedings” that are at the very core of AEDPA. Day,
Indeed, contrary to the dissent’s assertion that this court “religiously” holds waiver against the Government, we—along with other courts' of appeals—have upheld the discretion of federal courts to deny habeas petitions on procedural grounds in analogous' contexts;
Accordingly, we proceed ,⅛ consider the timeliness of Casey’s petition.
Casey contends that his petition is timely. He urges us to adopt a rule that, when faced with a silent record, we must assume the district court sentenced the defendant pursuant to the residual clause. Casey does not, however, assert that he was in fact sentenced under the residual clause.
In urging this rule, Casey asks us to break with our time-honored precedent. This circuit has long held that federal post-conviction petitioners bear the burden of proof and production under § 2255, and must “establish[ ] by a preponderance of the evidence that they are entitled to relief.” DiCarlo,
The Eleventh Circuit has appliеd this burden of proof specifically to situations where federal petitioners allege that they raise Johnson II claims. See Beeman v. United States,
This approach makes sense. Petitioners should bear the burden of proof because they were certainly present at sentencing and knowledgeable about the conditions under which they were sentenced. Furthermore, any other rule would undercut an animating principle of AEDPA: the presumption of finality. And “[wjithout finality, the criminal law is deprived of much of its detеrrent effect.” Teague v. Lane,
Casey fails to point to any evidence suggesting that he was sentenced under the residual clause.
The dissent also argues that because the district court’s order expressly stated that “Casey’s Johnson claim is a novel constitutional claim that applies retroactively,” United States v. Casey, Nos. 2:16-CV-346-DBH,
The Eleventh Circuit decision that Casey flags, In re Adams,
Casey directs our attention to three cases, United States v. Geozos,
The Ninth Circuit in Geozos held that a state or federal petitioner has a valid Johnson II claim whenever the sentencing court “may have” relied on the residual clause.
Our view is different. We think the focus must be on the fact that we are applying clear limits established by Congress for when federal post-conviction petitions may be entertained by the federal courts, an issue not implicated at all by Stromberg. There are also many reasons why collateral review is unique. “Chief among them is the principle that ‘direct appeal is the primary avenue for review of a conviction or sentence.... When the process of direct review ... comes to an end, a presumption of finality and legality attaches to the conviction and sentence.’ ” In re Moore,
• The Fourth Circuit in Winston agreed with the Ninth Circuit as to state habeas claimants, but on different grounds. The Fourth Circuit reasoned that “imposing the burden on movants [to shоw they had been sentenced under the residual clause] ... would result in ‘selective application’ of the new rule of constitutional law announced in Johnson II, violating ‘the principle of treating similarly situated defendants the same.’ ” Winston,
Moreover, Winston’s reliance on Teague to justify shifting the burden of proof onto the Government is misplaced. In Teague, the Supreme- Court held that “habeas corpus cannot be used as -a vehicle- to create new constitutional rules of criminal procedure unless those rules would-be applied retroactively to all defendants on collateral review.”
Finally, the Fifth Circuit’s decision -in Taylor is clearly distinguishable. In that case, the court held that a federal prisoner had a valid Johnson II claim even though the record was silent, and the district court later declared that the “residual clause ‘did not play any role in Movant’s sentencing.’ ” Taylor,
Our view is different from those taken in Geozos, Winston, and Taylor. Placing the burden of proof and production on habeas petitioners is in accord with our precedent and with the goals of AEDPA. See Turner v. United States,
III.
For the. foregoing reasons, we affirm the district courts’ dismissals of Dimott’s, Col-lamore’s, and Casey’s § 2255 petitions.
Notes
. More specifically, the petitioners argue that Mathis requires that we overrule this court’s holding in United States v. Duquette,
. Both Day and Wood concerned federal ha-beas petitions brought by state prisoners under 28 U.S.C. § 2254, not by federal prisoners under § 2255. We see no reason, however, why this Court’s power to raise sua sponte the timeliness defense for § 2254 cases should not extend to § 2255 cases. The statute of limitations provisions of both statutes mirror one another, and the considerations flagged , by the Supreme Court in Day—"judicial efficiency," “conservation of judicial resources,” and "finality,"
. In any case, the Supreme Court found in Day, the predecessor to Wood, that inadvertent error can constitute an “extraordinary circumstance[]” that justifies raising the timeliness bar sua sponte. See Wood,
. We do not rule on the correctness of the district court's holding that Casey's Johnson II claim was procedurally defaulted.
. And this case is clearly distinguishable from cases in which other courts of appeals have declined to act sua sponte. See, e,g„ United States v. Miller,
. In re Chance,
. Casey did not ask for remand to the district court to prove that he was in fact sentenced solely under the residual clause. He has chosen to proceed on the record as it now exists. See Beeman,
, Casey also attempts to argue that Mathis is not new law, but merely ''clarifies'' longstanding law. This is in effect an argument that Duquette was wrongly decided at the outset. That again goes to the merits of his Mathis claim, and doеs not alter the fact that Mathis does not apply retroactively on collateral review. Cf.
Dissenting Opinion
(Joining in part and Dissenting in part).
I join the majority in affirming the dismissals of Dimott’s .and Collamore’s § 2255 petitions as untimely. However, I cannot join in the majority’s disparate and inconsistent treatment of Casey’s petition for habeas relief, as opposed to its treatment of the other two petitions at issue, in order to avoid what this case truly calls for: a reevaluation of this Court’s opinion in Duquette in light of the Supreme Court’s decision in Mathis,
In the cases of Dimott and Collamore, the majority correctly gives “due weight” to the habeas judge’s finding that the petitioners were sentenced according to the ACCA’s enumerated clause because the habeas judge was also the sentencing judge. It is eminently reasonable that a sentencing judge is capable of determining the basis upon which he or she imposеd a sentence enhancement when subsequently reviewing that sentence on a § 2255 habe-as petition. See Schriro v. Landrigan,
The same deference must be given to the habeas judge who reviewed Casey’s petition, Judge Hornby, who—like Judge Singal in Dimott and Collamore’s cases— was the judge that sentenced Casey. On habeas review, Judge Hornby, also facing a silent record as to the clause under which he applied Casey’s ACCA sentencing enhancement, fourid that Casey did raise a Johrisоn II claim—meaning that his sentence was enhanced pursuant to the ACCA’s residual clause. See Casey,
The majority incorrectly assumes that my “insist[ence]” that the district court found that Casey raised a timely Johnson II claim is that the court analyzed the Government’s procedural-default, argument. This is wide of the mark. Rather, I so find after according Judge Hornby’s words their clear and unambiguous meaning. See id., at *3 (“I. conclude that ...
In a further departure from this Court’s guiding judicial doctrines, the majority raises sua sponte the issue of the timeliness of Casey’s habeas petition, which the Government did not argue below. In doing so, the majority ignores the advice provided by the Supreme Court in Wood that, in situations such as this, “[although a court of appeals has discretion to address, sua sponte, the timeliness of a habeas petition, appellate courts should reserve that authority for use in exceptional cases.” Id. at 473,
To justify its divergence from Wood’s guidance and find that the Government did not forfeit its timeliness argument, the majority speculates—in the Government’s favor—as to the reason that the Government did not advance this argument. I cannot subscribe to this guesswork approach. This Court religiously finds a party’s failure to raise an argument before the district court as waived on appeal. See, e.g., United States v. Román-Huertas,
Instead, I would find that the Government relinquished its timeliness argument in the district сourt. I note that this same U.S. Attorney’s Office (for the District of Maine) raised the issue of timeliness in its oppositions to both Dimott’s and Collar more’s § 2255 petitions, both filed within six weeks of its opposition to Casey’s petition. While the majority attributes the Government’s decision not to advance this argument in response to Casey’s petition as inadvertence rather than strategy, I do not so conjecture. This strikes me as an appropriate basis for finding that the Government displayed its “clear and accurate understanding of the timeliness issue” and “knew that it had an arguable statute of limitations defense,” but relinquished that argument. Wood,
Finally, the majority’s finding that Casey failed to satisfy his burden of proving by a preponderance of the evidence that he was sentenced under the residual clause is equally unpersuasive. The majority pronounces that, in the face of a silent record, placing the burden on a petitioner “makes sense ... because they were certainly present at sentencing and knowledgeable about the conditions under which they were sentenced.” I fail to see what could better satisfy the majority’s evidentiary requirement that petitioner was sentenced under the residual clause than a finding by the sentencing judge, who was also “certainly present at sentencing” and far more knowledgeable of his own sentencing decisions. I have a difficult time thinking of what further evidence, in the face of a silent record, could be more convincing. The majority suggests in a footnote that Casey could have asked for a remand to the district court to prove that he was sentenced solely under the residual clause; however, such a request would have been nonsensical after the habeas judge clearly already found as muсh. See Casey,
Given the deference owed to the habeas judge here, I would find that, under any of the standards announced by our sister circuits and discussed by the majority,
The district court was correct in its ruling' given its boundaries. However, this Court is not so constrained. See United States v. Tavares,
While we have not conducted this reanalysis of Duquette, Casey’s petition for habeas relief calls for us to do so tó determine if Casey suffered actual prejudice. Addressing this- more difficult issue— which the majority seeks to avoid—is necessary to decide this case.
Accordingly, I join in affirming the outcome proposed by the majority in the cases of Dimott and Collamore, and respectfully dissent from the majority in regards to Casey’s petition for habeas relief.
. As the majority explains, there is an emerging split amongst the circuit courts as to the burden of proof placed on petitioners facing a silent record who, through a § 2255 petition, maintain that their sentences were enhanced pursuant to the residual clause of the ACCA. The Fifth Circuit described this split well in Taylor,
. As pointed out by the district court below, Casey,