RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

JOHN C. NIVISON, Magistrate Judge.

In this action, Petitioner Kenneth Pelletier moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 57.) In 2013, following a guilty plea, Petitioner was convicted of conspiracy to distribute and possess with intent to distribute cocaine and 280 grams or more of cocaine base; the Court sentenced Petitioner to 222 months in prison. (Judgment, ECF No. 49 at 1-2.) Petitioner did not appeal from the judgment or the conviction. Petitioner claims he is entitled to relief under Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), for his career offender sentence.

Following a review of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

At sentencing, the Court found the facts as set forth in the revised presentence investigation report. (Sentencing Tr., ECF No. 53 at 31.) Consistent with the report, the Court concluded that the following three prior Maine state court convictions qualified as predicates under USSG § 4B1.1(a) for purposes of a career offender enhancement: a 1997 burglary offense (1998 conviction); a 2003 drug trafficking offense; and a 2004 drug trafficking offense.1 (Sentencing Tr., ECF No. 53 at 9, 31.)

The Court calculated Petitioner's offense level as follows: the base offense level was 34, based on a drug quantity of 6,477.8 kilograms of marijuana equivalent, pursuant to USSG § 2D1.1(c)(3); the offense level increased to 37, pursuant to USSG § 4B1.1(b)(1), because the statutory maximum term of imprisonment for the offense of conviction was life; the offense level was reduced by three levels, to 34, pursuant to USSG § 3E1.1(a), as credit for Petitioner's acceptance of responsibility. (Id. at 31.) The Court found the criminal history was Category VI. (Id.) The Court determined the advisory sentencing guidelines range was from 262 to 327 months. (Id.)

The Court considered the sentencing factors set forth in 18 U.S.C. § 3553(a), particularly "the circumstances of the offense, the history of the defendant, need for just punishment, and the need for deterrence," and the Court imposed a term of imprisonment of 222 months, to be followed by ten years of supervised release. (Id. at 34.) The sentence reflected a downward departure that the Court had granted on the Government's motion. (Id. at 5-6.)

Petitioner states that he placed his section 2255 motion in the prison mailing system on May 18, 2016; it was filed on May 23, 2016. (Motion at 1, 12.)

II. DISCUSSION

Petitioner contends that he is entitled to habeas relief because he was sentenced under the guidelines "residual" clause, USSG § 4B1.2(a)(2), which corresponds to the Armed Career Criminal Act (ACCA) provision the Supreme Court held unconstitutionally vague in Johnson.2

Petitioner's Johnson claim fails because in Beckles v. United States, ___ U.S. ____, 137 S.Ct. 886 (2017), the Supreme Court held that Johnson did not apply to career offender sentences.

Beckles, 137 S. Ct. at 890 (quoting USSG § 4B1.2(a)(2)).3

The First Circuit held that Beckles "put the residual clause back in play" for career offender sentences under the advisory guidelines. United States v. Ball, 870 F.3d 1, 4 (1st Cir. 2017); see United States v. Booker, 543 U.S. 220, 245 (2005) (holding that the sentencing guidelines, excised of provisions the Court held unconstitutional, are "effectively advisory"). Beckles precludes Petitioner's Johnson claim, because his sentence was imposed after Booker, i.e., after the sentencing guidelines became advisory.4

Although the issue of whether a Maine burglary qualifies as an ACCA predicate violent felony after Mathis v. United States, ___ U.S. ____, 136 S.Ct. 2243 (2016), is pending before the First Circuit in three cases that have been consolidated for briefing and argument, see Dimott v. United States, No. 16-2289; Collamore v. United States, No. 16-2319; Casey v. United States, No. 16-2368 (here referred to collectively as Dimott), the outcome of Dimott would have no bearing on Petitioner's section 2255 claim. First, as this Court noted in Dimott, 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-GZS, 2:16-cv-347-GZS, 2016 WL 6068114, at *3, 2016 U.S.Dist. Lexis 142354, at *6 (D. Me. Oct. 14, 2016). In addition, the central issue in Dimott is "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 enumerated clause" of the ACCA. Dimott, 2016 WL 6068114, at *4, 2016 U.S. Dist. Lexis 142354, at *12. As explained above, Beckles precludes Petitioner's Johnson claim, because his sentence was under the guidelines, rather than under the ACCA. Because Mathis is not in itself retroactively applicable, Petitioner would not be entitled to relief under Mathis, regardless of the outcome in Dimott.5

III. CONCLUSION

Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. In addition, I recommend that the Court deny Petitioner's motion for habeas relief under 28 U.S.C. § 2255. I further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).

NOTICE