Anthony M. Shea v. United States of America

2021 DNH 178

• Court: District Court, D. New Hampshire
• Decided: November 17, 2021
• Docket: 19-cv-1006-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Anthony M. Shea Case No. 19-cv-1006-SM v. Opinion No. 2021 DNH 178

United States of America

O R D E R

Petitioner, Anthony Shea, raises issues in this Section

2255 (28 U.S.C. § 2255) case that are substantively identical to

those raised by his codefendants McDonald and O’Halloran. See

McDonald v. United States, 2021 WL 260397 (D.N.H. January 25,

2021); O’Halloran v. United States, No. 17-cv-330-SM (United

States Court of Appeals for the First Circuit Docket No. 21-

1157).

The government correctly concedes that under the Supreme

Court’s decision in Johnson v. United States, 135 S. Ct. 2551

(2015), Shea is entitled to relief with respect to the sentences

imposed for his two convictions on felon (prohibited person) in

possession of a firearm charges, those sentences rested upon a

now incorrect determination of his status as an armed career

criminal. Those sentences will be corrected by reducing them to

the low end of the properly calculated applicable Guideline

Sentencing Range, and a revised judgment reflecting that

1 reduction shall issue. (Defendant is also serving a life

sentence on his unchallenged conviction for carjacking.)

Section 924(c) Convictions

As did McDonald and O’Halloran, petitioner argues that his

two convictions for using or carrying a firearm in connection

with crimes of violence (18 U.S.C. § 924(c)) should be vacated,

given the Supreme Court’s subsequent holding in United States v.

Davis, 588 U.S. __, 139 S. Ct. 2319 (2019) (invalidating the

“residual clause” in Section 924(c)). The holding in Davis is

retroactive and applies in Shea’s case. United States v. Bowen,

936 F.3d 1091, 1098 (10th Cir. 2019).

Jury instructions given with respect to Shea’s Section

924(c) counts were rendered retroactively erroneous by the

decision in Davis, in that the jury was told that counts

charging “conspiracy to commit robbery,” could serve as

predicate “crimes of violence.” Because conspiracy does not

qualify as a “crime of violence” under the “force clause” of

Section 924(c), and the residual clause (that may have covered

it) is now invalid, Shea seeks to have those convictions vacated

as well as sentence relief.

But, Shea was also convicted of two substantive robbery

offenses, which did, and still do, qualify as predicate “crimes

of violence” under Section 924(c). The indictment, and

2 instructions, referred to both the conspiracy to commit robbery

and the substantive robbery counts as potential predicates. The

conspiracy counts related to the very same robberies charged in

the substantive counts, and the jury convicted Shea of all four

charges.

For the reasons given in McDonald, it is plain that the

retroactive error in the jury instructions was harmless beyond

any doubt. See Durfee v. United States, 2020 WL 1942324 at * 4

(D.N.H. April 20, 2020) citing cases (Generally, “when the valid

and invalid predicate offenses are coextensive, a reasonable

probability does not exist that the jury convicted based only on

the invalid offense.”). “It does not make sense that the jury

could find the petitioner used a firearm in the conspiracy, but

not the robbery” that was the object of the conspiracy. Id.,

citing Johnson v. United States, 2019 WL 1790218 at * 6 (C.D.

Calif. April 23, 2019).

Conclusion

The jury instructions given with respect to the Section

924(c) counts, while retroactively rendered erroneous by Davis,

were nonetheless harmless beyond doubt given that the jury

convicted on both conspiracy to commit robbery and the very

robberies petitioner conspired to commit. The conspiracy and

robbery counts were interrelated and coextensive in every

3 material respect. The robbery offenses plainly qualified as

“crimes of violence” predicates, and the jury’s verdict on the

Section 924(c) counts remain valid.

Judgment shall enter in accordance with this order.

Rule 11 Certificate of Appealability

As petitioner has not made a substantial showing of the

denials of a constitutional right (28 U.S.C. § 2253(c)(2)) with

respect to the two Section 924(c) convictions, and relief

otherwise having been granted under Johnson, the court declines

to issue a certificate of appealability. Petitioner is,

however, free to seek such a certificate from the United States

Court of Appeals for the First Circuit, located in Boston,

Massachusetts. Rule 11, Rules Governing Section 2255

Proceedings.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

November 17, 2021

cc: Jeffrey S. Levin, Esq. Wade M. Zolynski, Esq. Seth R. Aframe, AUSA