RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION and MOTION TO STRIKE

JOHN C. NIVISON, Magistrate Judge.

In this action, Petitioner Thomas Paul Brichetto, Jr., moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 168.) The First Circuit granted Petitioner leave to file the motion "to pursue in the district court a challenge to his `career offender' designation based on [Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015)]." (Brichetto v. United States, No. 16-1796 (1st Cir. Nov. 30, 2017).)1

Petitioner's motion to strike two exhibits attached to the Government's response is also pending; the Government submitted the exhibits as evidence of two prior Maine state court burglary convictions. (Motion to Strike, ECF No. 181; Response, ECF No. 177 at 22 & n.10; Attachments, ECF Nos. 177-2, 177-3.)

Following a review of the section 2255 motion and the record, and after consideration of the parties' arguments, I recommend the Court dismiss the section 2255 motion, and recommend the Court dismiss as moot the motion to strike.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In December 2001, Petitioner and three accomplices robbed at gunpoint a branch of a credit union in Gorham, Maine. United States v. Brichetto, 121 F. App'x 876, 876 (1st Cir. 2005). In 2004, following a jury trial, Petitioner was convicted of one count of armed bank robbery, 18 U.S.C. § 2113(a), (d), § 2 (Count 1), and one count of using and carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2).2 (Indictment, ECF No. 4; Jury Verdict, ECF No. 96; Judgment, ECF No. 119 at 1.) The Court sentenced Petitioner to prison terms of 300 months on Count 1, and 84 months on Count 2, to be served consecutively to the term on Count 1. (Judgment at 2.) The prison terms were to be followed by terms of supervised release of five years on each count, to be served concurrently. (Id. at 3.)

At sentencing, the Court found Petitioner was a career offender under the sentencing guidelines, pursuant to USSG § 4B1.1, based on two or more prior felony crimes of violence, as set forth in the revised presentence investigation report. (Sentencing Tr., ECF No. 123 at 32-34; Report, ¶¶ 28-36.) The addendum to the revised presentence investigation report and the sentencing transcript reflect that Petitioner did not object to the finding that he had five career offender predicate convictions (Sentencing Tr. at 32-34.) Two of the prior offenses (¶¶ 28, 29) were Maine residential burglaries; three were non-residential burglaries — two in Maine (¶¶ 31, 34) and one in Massachusetts (¶ 33).3

The uncontroverted record does not reflect that the Court found as fact, either at sentencing or in a prior habeas proceeding, that Petitioner's prior Maine burglary offenses were predicates based on the career offender residual clause then in effect, USSG § 4B1.2(a)(2). (Response at 10; Reply, ECF No. 180 at 5-6.) Petitioner, however, contends the Court's citation to United States v. Rodriguez, 311 F.3d 435 (1st Cir. 2002), in one of his prior habeas proceedings, demonstrates that he had been sentenced based on the Court's determination that the prior Maine burglaries qualified as career offender predicates under the residual clause. (Reply at 5-6.)

Because the Court found that Petitioner qualified as a career offender, the Court determined the total offense level was 34, rather than the lower level of 26 that otherwise would have applied to Count 1.4 (Sentencing Tr. at 32-33.) The Court also found a criminal history Category VI; according to a portion of the presentence investigation report on which the Court relied at sentencing, Category VI applied based on either Petitioner's career offender status or his 21 criminal history points. (Id. at 33-35; Report ¶¶ 35-36.) The Court noted that because Petitioner was convicted under 18 U.S.C. § 2113(d), which provides a statutory maximum of 25 years (300 months), the guidelines range was 262 to 300 months, rather than the otherwise applicable range of 262 to 327 months. (Sentencing Tr. at 34-35.)

The Court sentenced Petitioner to the statutory maximum of 300 months on Count 1, pursuant to 18 U.S.C. § 2113(d), and to the statutory minimum of 84 months in prison on Count 2, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), to be served consecutively to the term on Count 1, pursuant to section 924(c)(1)(D)(ii). (Sentencing Tr. at 36-37; Judgment at 1-2.) The Court assessed the sentencing factors, pursuant to 18 U.S.C. § 3553(a), relevant to the sentence, and explained the bases of the sentence:

(Sentencing Tr. at 38-39.)

Petitioner argued on appeal that the jury verdict was inconsistent given the acquittal on the felon-in-possession charge; the First Circuit concluded there was "more than sufficient evidence" to find Petitioner guilty on Counts 1 and 2, and the Court affirmed the conviction.5 Brichetto, 121 F. App'x at 876-78.

In this action, Petitioner contends he is entitled to relief under Johnson from both the career offender sentence on Count 1 and the 18 U.S.C. § 924(c) sentence on Count 2.6 (Motion at 5-6.)

II. DISCUSSION

A. Background on Johnson

Petitioner challenges the Court's career offender sentence enhancement, which was based on prior "crimes of violence" under the sentencing guidelines; his claim, and the First Circuit's authorization, are based on Johnson, which addressed a sentencing enhancement pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). Section 924(e)(1) provides in part that a defendant "who violates [18 U.S.C. § 922(g)] and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, . . . shall be . . . imprisoned not less than fifteen years . . . ." Section 924(e)(2)(B) provides:

Section 924(e)(2)(B)(i) is known as the "force" clause or the "elements" clause; the provision of section 924(e)(2)(B)(ii) that references burglary, arson, extortion, or the use of explosives is known as the "enumerated offenses" clause; the remainder of section 924(e)(2)(B)(ii), i.e., the provision "or otherwise involves conduct that presents a serious potential risk of physical injury to another," is known as the "residual" clause. United States v. Starks, 861 F.3d 306, 314 (1st Cir. 2017); United States v. Edwards, 857 F.3d 420, 422-23 & n.2 (1st Cir. 2017).

In Johnson, the Court left intact the force clause and the enumerated offenses clause of section 924(e)(2)(B): "Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony." 135 S. Ct. at 2563. In Welch v. United States, ___ U.S. ____, 136 S.Ct. 1257, 1268 (2016), the Supreme Court held that "Johnson announced a substantive rule that has retroactive effect in cases on collateral review."

In Beckles v. United States, ___ U.S. ____, 137 S.Ct. 886 (2017), the Supreme Court held that Johnson does not apply to career offender sentences imposed after the sentencing guidelines became advisory, i.e., after the Supreme Court's 2005 decision in Booker. 137 S. Ct. at 890, 894. Beckles did not involve the issue of whether Johnson applies to sentences imposed before Booker, when the sentencing guidelines were mandatory. Id. at 903 n.4 (Sotomayor, J., concurring).

The career offender provision of the sentencing guidelines, USSG § 4B1.1, provides in relevant part: "A defendant is a career offender if . . . (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." USSG § 4B1.1(a). Section 4B1.2(a) provided at the time of Petitioner's sentencing:

After Johnson, the residual clause was deleted from section 4B1.2. USSG Supp. to App. C, amend. 798 (Aug. 1, 2016). However, the amendment does not apply retroactively. USSG § 1B1.10; United States v. Strevig, 663 F. App'x 908, 912 (11th Cir. 2016) (per curiam) ("The Sentencing Commission . . . has not made Amendment 798 retroactive to individuals sentenced prior to the effective date of the amendment.").

B. Claim and Analysis

1. The successive section 2255 motion

The First Circuit authorized Petitioner to pursue his claim that Johnson invalidates his career offender sentence because the sentence was imposed when the guidelines were mandatory.7 (Brichetto, No. 16-1796 (1st Cir. Nov. 30, 2017).)

As the First Circuit noted in Moore, before this Court may address the merits of a second or successive section 2255 motion, it must conduct the gatekeeping analysis required under 28 U.S.C. § 2244(b)(4) and section 2255(h): "[T]he district court is required to redo the very analysis performed in this opinion before entertaining a successive § 2255 motion." Moore, 871 F.3d at 85. Section 2244(b)(4) provides: "A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section." See Moore, 871 F.3d at 85 (citing section 2244(b)(4)).

When a second or successive claim is based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," pursuant to section 2255(h)(2), a petitioner "must `make [] a prima facie showing,'" pursuant to section 2244(b)(3)(C), that the claim actually relies on the new rule of constitutional law. 871 F.3d at 78. A motion does not meet gatekeeping requirements for certification if "`it is clear as a matter of law, and without the need to consider contested evidence, that the petitioner's identified constitutional rule does not apply to the petitioner's situation.'" Moore, 871 F.3d at 79 (quoting Evans-García v. United States, 744 F.3d 235, 240 (1st Cir. 2014)).

The First Circuit held in Dimott v. United States, 881 F.3d 232 (1st Cir. 2018), cert. denied, sub nom Casey v. United States, 138 S.Ct. 2678 (2018), that a petitioner who cannot show the sentence was based solely on the residual clause does not present a Johnson claim. 881 F.3d at 243 ("We hold that to successfully advance a [Johnson] claim on collateral review, a habeas petitioner bears the burden of establishing that it is more likely than not that he was sentenced solely pursuant to ACCA's residual clause."); United States v. Dancy, 640 F.3d 455, 466 n.9 (1st Cir. 2011) ("We have held that `the terms "crime of violence" under the career offender Guideline and "violent felony" under the ACCA are nearly identical in meaning, so that decisions construing one term inform the construction of the other.'") (quoting United States v. Willings, 588 F.3d 56, 58 n.2 (1st Cir. 2009)). In Dimott, therefore, the First Circuit explained the burden a petitioner must meet, particularly with a sentencing and habeas record that is silent as to whether the sentencing court relied on the residual clause, before the Court may address the merits of a Johnson claim. Id. at 240-43. Although Dimott did not involve a second or successive review,8 the Court's reasoning in Dimott is relevant to the threshold question of whether a petitioner can sustain a Johnson challenge to a career offender finding under the guidelines; if a petitioner cannot demonstrate the sentence was based solely on the residual clause, Johnson does not apply, Dimott, 881 F.3d at 234, and the case does not meet the gatekeeping requirements of sections 2244(b)(2) and 2255(h)(2), Moore, 871 F.3d at 79. The preliminary issue in this case is thus whether the Court relied solely upon the residual clause of the guidelines when it concluded Petitioner was a career offender.

As was the case regarding the ACCA sentences of each of the three petitioners in Dimott, 881 F.3d at 234-35, the record of Petitioner's sentencing under the guidelines does not reflect under which clause of the career offender guideline—enumerated or residual—Petitioner's sentence was enhanced. (Sentencing Tr. at 32-34.) In Dimott, the reviewing judge in the habeas petitions of petitioners Dimott and Collamore had presided at sentencing and found as fact on collateral review that the sentences were pursuant to the enumerated offenses clause; the First Circuit concluded that Dimott's and Collamore's petitions therefore did not raise Johnson challenges. 881 F.3d at 236-37.

The First Circuit concluded the factual record in both the sentencing and habeas proceedings was silent as to whether the third petitioner, Casey, was sentenced solely under the residual clause. Id. at 238. The First Circuit noted that this Court denied Casey's section 2255 motion based on a finding that the claim was procedurally defaulted, and "Casey failed to demonstrate that his procedural default would unfairly prejudice him `[b]ecause 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.'" Id. at 235. The First Circuit held that, with a silent factual record at sentencing and in the habeas proceeding, Casey had not met his burden to establish he was sentenced solely under the residual clause. Id. at 243. "Accordingly, we find Casey's petition, which—like those of Dimott and Collamore—relies solely on the non-retroactive decision in [Mathis v. United States, ___ U.S. ____, 136 S.Ct. 2243 (2016)], untimely." Id.

In Petitioner's case, as in Casey's, the sentencing record is silent as to whether Petitioner's career offender sentence was under the residual clause or the enumerated offenses clause. Notably, at Petitioner's sentencing, the Court relied in part on paragraphs of the revised presentence investigation report (Report, ¶¶ 28, 29) that alleged two prior residential burglaries, and Petitioner did not object. (Sentencing Tr. at 32, 34.) See Shepard v. United States, 544 U.S. 13, 16 (2005) (holding a sentencing court may examine, among other things, "any explicit factual finding by the trial judge to which the defendant assented" in determining "whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary"); In re Hires, 825 F.3d 1297, 1302 (11th Cir. 2016) ("In determining the nature of a defendant's prior convictions and whether to classify the defendant as an armed career criminal under the ACCA, the sentencing court may rely on Shepard-approved documents and any undisputed facts in the presentence investigation report."). At least two of the prior burglaries would appear to qualify as career offender predicates under the enumerated offenses clause.

Furthermore, as with petitioner Casey's habeas record in Dimott, there is no factual finding in Petitioner's prior habeas record that establishes Petitioner was sentenced solely under the residual clause. Petitioner relies on this Court's 2006 decision on collateral review to meet his burden under Dimott.9 In particular, Petitioner relies on this Court's reference to Rodriguez, which involved a career offender determination under the residual clause, for his claim that he was sentenced under the residual clause. This Court wrote in its 2006 decision:

(Brichetto v. United States, No. 2:06-cv-00057-GC, Order, ECF No. 12 at 9-10.) Brichetto, 2006 WL 3545001, at *5, 2006 U.S. Dist. Lexis 89456, at *15 (D. Me. Dec. 8, 2006).

This Court's reference to Rodriguez does not constitute a record finding, and therefore the reference does not alter the fact that the record is silent as to which clause of USSG 4B1.2(a)(2) rendered the prior offenses career offender predicates. The mere fact that the Court cited Rodriguez cannot be deemed as an acknowledgement or determination that at sentencing, the residual clause governed the Court's finding that Petitioner was a career offender. In short, the Court's reference to Rodriguez in its rejection of Petitioner's ineffective assistance argument cannot reasonably be construed as a finding that Petitioner was sentenced solely under the residual clause.10

Given the silent record on the issue, the fact that the presentence report upon which the Court relied at sentencing identified two prior qualifying convictions under the enumerated offenses clause, and the lack of any other reliable evidence to suggest the Court's career offender determination was based solely on the residual clause, Petitioner cannot maintain a Johnson claim. As in Dimott, therefore, this Court need not address the merits of Petitioner's Johnson claim (here, whether Johnson applies to Petitioner's pre-Booker sentence); Petitioner would not be entitled to relief, regardless of how the issues identified in Moore are eventually decided. See United States v. Hall, No. 2:02-cr-00063-DBH (D. Me. Dec. 21, 2017) (Recommended Decision, ECF No. 79 at 5; Order Affirming, ECF No. 80) (noting the issue of whether Johnson invalidates the pre-Booker sentencing guidelines residual clause has not been decided, but it need not be resolved in Hall's case, because regardless of how the Court ruled on the issue, the petitioner would qualify as a career offender under the force clause.) Hall v. United States, 2017 WL 6045423 (D. Me. Dec. 6, 2017) (recommended decision). Petitioner's Johnson claim thus fails.

In the absence of a Johnson claim, Petitioner's motion fails to meet the requirement, set forth in section 2255(h)(2), that the motion rely on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." See United States v. Murphy, 887 F.3d 1064, 1068 n.1 (10th Cir. 2018) (noting that "`in the context of a [§] 2255 motion, the phrase "the requirements of this section" in [§] 2244(b)(4) refers to the requirements set out in [§] 2255'") (quoting United States v. Villa-Gonzalez, 208 F.3d 1160, 1164 n.4 (9th Cir. 2000)); United States v. Wiese, 896 F.3d 720, 726 (5th Cir. 2018) (revised) (holding "the district court did not have jurisdiction to reach the merits" of a Johnson motion, because "Johnson only applied to the residual clause and cannot be used to attack sentences under the enumerated offenses clause").11 Dismissal of the section 2255 motion, therefore, is warranted.

2. The motion to strike

Petitioner moves to strike Shepard documents offered by the Government on collateral review; the documents were not part of the sentencing record. (Attachments to Response, ECF Nos. 177-2, 177-3; Motion to Strike, ECF No. 181 at 2.) The documents consist of, among other things, copies of the indictments, each of which alleges the burglary was of a dwelling place; and the judgments, which, because they reflect the crime in each case was a "Class B" burglary, are consistent with burglary of a dwelling place under the statute alleged in the indictments: 17-A M.R.S. § 401. (ECF Nos. 177-2, 177-3.)

Petitioner alleges the documents were "altered and/or redacted." (Motion to Strike at 2.) The Government represents that it redacted certain personal identifying information about Petitioner and the victims, pursuant to Fed. R. Crim. P. 49.1. (Response to Motion to Strike, ECF No. 182 at 5.)

The Court has the authority to expand the record on collateral review, pursuant to Rule 7 of the Rules Governing Section 2255 Motions. See Advisory Committee Notes to 2004 Amendments ("Revised Rule 7(a) is not intended to restrict the court's authority to expand the record through means other than requiring the parties themselves to provide the information.") The records at issue (ECF Nos. 177-2, 177-3), however, are not necessary to the decision, because Petitioner has the burden, under Dimott, 811 F.3d at 243, to demonstrate he was sentenced solely under the residual clause; the Government does not have the burden to establish Petitioner was sentenced under some other clause of the career offender guideline. Accordingly, although Petitioner's motion to strike would fail on the merits because Petitioner alleges no alteration or redaction other than those the Government represents were required under Fed. R. Crim. P. 49.1, the motion to strike should be dismissed as moot.12

III. CONCLUSION

Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. I recommend that the Court deny Petitioner's motion for habeas relief under 28 U.S.C. § 2255. I also recommend the Court dismiss as moot the motion to strike. 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