Caron v. U.S.

183 F.Supp.2d 149

Gerald R. CARON, Petitioner, v. UNITED STATES of America, Respondent.

No. CIV.A. 01-10588-WGY.

United States District Court, D. Massachusetts.

October 31, 2001.

Gerald R. Caron, F.C.I. Raybrook, Ray Brook, NY, pro se.

Brian T. Kelly, United States Attorney's Office, Boston, MA, for Brian T. Kelly.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

The petitioner, Gerald R. Caron ("Caron"), moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence for various firearms offenses in violation of 18 U.S.C. § 922(g)(1). Under the authority accorded by Rule 4 of the Rules Governing Section 2255 Proceedings, this Court previously dismissed sua sponte seven of the eight grounds upon which Caron seeks relief as either fully explored and resolved in previous appellate proceedings or frivolous. Endorsed Order of Apr. 23, 2001 [Docket No. 1]. With respect to Caron's remaining claim, the Court stated: "The sole issue that requires a response is the contention that state charges later dropped for insufficiency of the evidence were used to enhance petitioner's sentence beyond the indicated statutory maximum. As to that issue, the government must respond." Id. The Court addresses this issue now.

I. Background

On February 10, 1994, a federal grand jury indicted Caron for various violations of 18 U.S.C. § 922(g)(1),¹ based on Caron's possession of firearms and ammunition after previously having been convicted of a felony. In July 1994, a jury found Caron guilty of four counts of being a felon in possession. At Caron's sentencing in September 1994, the Court concluded that Caron was an armed career criminal pursuant to 18 U.S.C. § 924(e)(1), which states:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years . . . .

Id. Caron's predicate felony convictions consisted of three Massachusetts convictions for crimes involving breaking and entering, a California conviction for attempted murder, and three federal firearms convictions arising out of a single incident. 941 F.Supp. 238, 240 n. 3 (D.Mass.1996). Accordingly, the Court sentenced Caron to a term of imprisonment of twenty-one years, ten months, plus a five-year term of supervised release. 9/19/94 Disposition Tr. at 20-22; see also U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] § 4B1.4(b)(3)(A)-(c)(2); id. ch. 5, pt. A (sentencing table).

On appeal, Caron claimed that his Massachusetts convictions should not have been counted by this Court as predicate crimes under the definition set forth in 18 U.S.C. § 921(a)(20)² because his civil rights had been restored by operation of Massachusetts law. The First Circuit affirmed Caron's conviction, 64 F.3d 713 (1st Cir.1995), but granted a limited rehearing en banc, id. at 719, to determine whether civil rights can be restored under section 921(a)(20) by operation of law, or merely by offender-specific action, 77 F.3d 1, 2 (1st Cir.1996) (en banc). Reversing its earlier decision in United States v. Ramos, 961 F.2d 1003 (1st Cir.1992), the en banc court held that civil rights may be restored within the meaning of 18 U.S.C. § 921(a)(20) by laws of general or automatic application, 77 F.3d at 4. The First Circuit then remanded the case to this Court for resentencing in accordance with its opinion. The Supreme Court denied certiorari. 518 U.S. 1027, 116 S.Ct. 2569, 135 L.Ed.2d 1085 (1996).

On remand, the Court considered whether Caron's Massachusetts convictions might nevertheless count as predicate crimes under section 921(a)(20), despite the substantial restoration of Caron's civil rights. 941 F.Supp. at 247. The Court noted that if Massachusetts law "expressly provides that [Caron] may not ship, transport, possess, or receive firearms," id. (quoting 18 U.S.C. § 921(a)(20)), then Caron's prior felony convictions would constitute predicate crimes and he would be subject to sentencing as an armed career criminal pursuant to section 924(e)(1). After careful consideration, the Court determined that because, under Massachusetts law, Caron could keep and carry rifles and shotguns,³ the specific weapons at issue in Caron's case, "Massachusetts has not sufficiently proscribed Caron's association with firearms such that he may be sentenced as an armed career criminal in federal court." Id. at 252. Therefore, the Court sentenced Caron to a term of imprisonment of ten years, plus a three-year term of supervised release. Id. at 256.

On appeal by the government, the First Circuit reversed in an unpublished order, stating that because Caron remained subject to significant firearms restrictions— namely, restrictions on possessing handguns outside his home or business—his Massachusetts convictions could be counted as predicate crimes and he ought to have been resentenced as an armed career criminal. Nos. 96-2338, 96-2339 (1st Cir. May 9, 1997) (unpublished order).

The Supreme Court granted certiorari. 522 U.S. 1038, 118 S.Ct. 680, 139 L.Ed.2d 628 (1998). The Supreme Court determined that the portion of section 921(a)(20) that states that a previous conviction is not a predicate for sentence enhancement if an offender has had his civil rights restored, "unless such ... restoration of civil rights expressly provides that the person may not ... possess ... firearms," mandates a uniform approach. According to this approach, "[e]ither the [Massachusetts] restorations [of civil rights] forbade possession of `firearms' and the convictions count for all purposes, or they did not and the convictions count not at all." 524 U.S. 308, 314, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998). The Supreme Court concluded that the phrase "may not ... possess ... firearms" in section 921(a)(20) includes partial restrictions on possession of one or more types of firearms, such as Massachusetts' restriction on handguns. Thus, the Supreme Court affirmed the First Circuit holding that because Massachusetts had not fully restored Caron's right to possess handguns, a right accorded by the state to law-abiding citizens, Caron's Massachusetts convictions were predicate crimes under 18 U.S.C. § 921(a)(20). 524 U.S. at 316-17, 118 S.Ct. 2007.

In light of the Supreme Court's opinion, the First Circuit dismissed Caron's appeal and again vacated the judgment and remanded the case to this Court for resentencing. On April 20, 1999, the Court sentenced Caron to a term of twenty-one years, ten months imprisonment, to be followed by a five-year term of supervised release.

Caron appealed, attacking the Court's denial of a downward departure for substantial post-sentence rehabilitation. The First Circuit concluded that this Court's refusal to grant a downward departure was consistent with United States v. Bradstreet, 207 F.3d 76 (1st Cir.2000), which stated that a departure is permissible based on post-sentence rehabilitation only if the achievement is present "to such an exceptional degree that the situation cannot be considered typical of those circumstances in which the explicit departure— rehabilitation in the context of acceptance of responsibility—is normally granted," id. at 83. The First Circuit therefore declined to review this Court's refusal to depart, absent a mistake of law, and affirmed Caron's sentence. 208 F.3d 321, 323 (1st Cir.2000).

II. Analysis

A. Timeliness under 28 U.S.C. § 2255

This Court must first assess whether Caron's petition, filed on April 9, 2001, is timely under section 2255's one-year statute of limitations. The question for this Court is whether April 9, 2001 fell within one year of "the date on which [Caron's] judgment of conviction [became] final." 28 U.S.C. § 2255(1).

There is some disagreement in the federal courts as to what date constitutes the date that a judgment of conviction becomes final where, as here, the defendant opted not to petition the Supreme Court for a writ of certiorari after his conviction was affirmed in the court of appeals. The Third, Fifth, Ninth, and Tenth Circuits have held that a conviction becomes "final" when the ninety-day period for seeking certiorari expires, United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir.2000); United States v. Gamble, 208 F.3d 536, 536 (5th Cir.2000) (per curiam); United States v. Burch, 202 F.3d 1274, 1276 (10th Cir.2000); Kapral v. United States, 166 F.3d 565, 570 (3d Cir.1999), while the Fourth and Seventh Circuits have held that a conviction becomes final when the court of appeals issues its mandate denying the appeal, United States v. Torres, 211 F.3d 836, 839 (4th Cir.2000); Gendron v. United States, 154 F.3d 672, 674 (7th Cir.1998) (per curiam).

Although the First Circuit has not yet taken a clear stance on this issue, Trenkler v. United States, 268 F.3d 16, 21-22 n. 5 (1st Cir.2001), it appears to favor the approach enunciated by the Third, Fifth, Ninth, and Tenth Circuits. In Rogers v. United States, 180 F.3d 349 (1st Cir.1999), cert. denied, 528 U.S. 1126, 120 S.Ct. 958, 145 L.Ed.2d 831 (2000), the First Circuit held that a conviction becomes final when the Supreme Court denies an application for certiorari, id. at 352. Following Rogers to its logical conclusion, where a petitioner, such as Caron, does not seek certiorari, his conviction becomes final upon the expiration of the ninety-day period for filing a petition for certiorari. See Mayne v. Hall, 122 F.Supp.2d 86, 90 (D.Mass.2000) (Stearns, J.) (adopting the report and recommendation of Bowler, Mag.). Thus Caron's judgment of conviction became final on July 27, 2000, the date that his right to file a petition for certiorari with the Supreme Court expired, and the instant petition, filed on April 9, 2001, is timely.⁴

B. Caron's Claims under Apprendi v. New Jersey

In his...