UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael K. O’Halloran, Petitioner
v. Case No. 17-cv-330-SM Opinion No. 2018 DNH 153 United States of America, Respondent
O R D E R
Petitioner, Michael O’Halloran, seeks relief under the
provisions of 28 U.S.C. § 2255. He argues that the decision in
Johnson v. United States, 135 S. Ct. 2551 (2015), made
retroactive in Welch v. United States, 136 S. Ct. 1257 (2016),
invalidates the “residual clause” of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), and Section 924(c)
(prohibiting the use of a firearm during or in relation to any
“crime of violence” 18 U.S.C. § 924(c).
The Government concedes that O’Halloran would qualify for
relief on his ACCA claim under ordinary circumstances, but
suggests that the claim need not be resolved in this case, given
the “concurrent sentence doctrine” (O’Halloran is also serving
an unchallenged concurrent life sentence for carjacking). As
for his § 924(c) claim, the Government seeks dismissal on grounds that it is untimely. For the reasons discussed below,
Petitioner’s motion is granted in part, and stayed in part.
Analysis
1. The Concurrent Sentence Doctrine
O’Halloran was convicted in 1997 of numerous crimes
including: carjacking, racketeering, robbery, conspiracy to
commit robbery, felon in possession of a firearm, and use of a
firearm during a crime of violence. He was sentenced to life in
prison. The Government correctly points out that, even granting
O’Halloran the relief he seeks, neither his term, nor the
conditions of his imprisonment, will change: he will remain in
prison, serving a life sentence. Accordingly, the government
argues that the concurrent sentence doctrine counsels against
resolving the limited claims raised in O’Halloran’s petition.
The concurrent sentence rule provides that a sentencing
error is harmless if a defendant would not spend less time in
prison even if that error were corrected, because he is serving
a concurrent sentence of the same or greater length for another
conviction which was not challenged. While the rule remains
viable in this circuit, our Court of Appeals is “aware of the
disfavor that the Supreme Court cast upon the concurrent
sentence rule in Benton v. Maryland, 395 U.S. 784 (1969).”
2 Vanetzian v. Hall, 562 F.2d 88, 90 (1st Cir. 1977). The Supreme
Court has acknowledged that the concurrent sentence rule may
have “some continuing validity as a rule of judicial
convenience” but, that equal concurrent sentences do not present
a jurisdictional bar to review. Benton, 395 U.S. at 791, 793.
The Court noted that in a situation where a future successful
challenge to one sentence would require review of the sentence
presently challenged, it is “certainly preferable” to conduct
the review now, rather than later. Id. at 793. In this case,
while a future successful challenge to O’Halloran’s carjacking
sentence is unlikely, still, it seems preferable to resolve the
claims made now, rather than invoke the convenience of the
concurrent sentence rule.
2. Challenge to Sentence under 18 U.S.C. § 924(e) (ACCA)
O’Halloran first challenges his sentences on two counts of
being a Felon in Possession of a Firearm, imposed pursuant to
the ACCA, 18 U.S.C. § 924(e)(2)(B). That statute prescribes a
minimum sentence of fifteen years and a maximum sentence of life
in prison for a defendant with three prior “violent felony”
convictions. At the time of O’Halloran’s sentencing, a prior
conviction qualified as a predicate “violent felony” if it was
for “burglary, arson, or extortion, [or] involve[d] use of
3 explosives” (referred to as the “enumerated crimes clause”);
“has as an element the use, attempted use, or threatened use of
physical force against the person or property of another,”
(referred to as the “elements clause”); or if the crime
“otherwise involves conduct that presents a serious potential
risk of physical injury to another” (referred to as the
“residual clause”). 18 U.S.C. § 924 (e)(2)(B)(i)-(ii). In
Johnson v. United States, the Supreme Court struck down the
residual clause of §924(e)(2)(B) as unconstitutionally vague.
135 S. Ct. at 2563. Therefore, if any of O’Halloran’s three
prior “violent crime” convictions satisfy the residual clause,
but not the elements or the enumerated crimes clause, of
§ 924(e), then his current sentence is necessarily invalid, and
O’Halloran is entitled to relief.
At sentencing, the court adopted the presentence report and
determined that O’Halloran was an Armed Career Criminal, based
on predicate state convictions for Armed Assault with Intent to
Murder (MA), Armed Bank Robbery (MA), and Assault with a
Dangerous Weapon (RI). O’Halloran argues, and both the
Government and United States Probation Office agree, that a
Rhode Island Conviction for Assault with a Dangerous Weapon
(ADW) does not qualify as a “violent felony” under the elements
clause of the ACCA. See United States v. Sabetta, 221 F. Supp.
3d 210 (D.R.I. 2016) (holding that because “recklessness” is
4 sufficient to support an ADW conviction in Rhode Island, such a
conviction could not serve as an ACCA predicate under the
categorical analytical approach). See Gov. Objection (document
no. 9) at 1 n.1; U.S. Probation Memo (document no. 6) at para.
1. O’Halloran, then, had only two qualifying violent felony
convictions, and the ACCA sentence enhancement was inapplicable
to him. Accordingly, the motion for sentence relief under
Johnson is necessarily granted. O’Halloran’s affected sentences
will be reduced to the low end of the correctly calculated
applicable Guideline Sentencing Range, and a revised judgment
reflecting that modification shall issue.
3. Challenge to Conviction Under 18 U.S.C. § 924(c)
O’Halloran also challenges his two convictions for use of a
firearm during a crime of violence (18 U.S.C. § 924(c)). The
Court of Appeals for the First Circuit granted petitioner leave
to file this second § 2255 petition because his ACCA claim
satisfied the prerequisites set out in 28 U.S.C. § 2255(h)(2).
O’Halloran v. United States, No. 16-1772 (1st Cir. July 13,
2017) (ECF document no. 1-1). However, the court took “no
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael K. O’Halloran, Petitioner
v. Case No. 17-cv-330-SM Opinion No. 2018 DNH 153 United States of America, Respondent
O R D E R
Petitioner, Michael O’Halloran, seeks relief under the
provisions of 28 U.S.C. § 2255. He argues that the decision in
Johnson v. United States, 135 S. Ct. 2551 (2015), made
retroactive in Welch v. United States, 136 S. Ct. 1257 (2016),
invalidates the “residual clause” of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), and Section 924(c)
(prohibiting the use of a firearm during or in relation to any
“crime of violence” 18 U.S.C. § 924(c).
The Government concedes that O’Halloran would qualify for
relief on his ACCA claim under ordinary circumstances, but
suggests that the claim need not be resolved in this case, given
the “concurrent sentence doctrine” (O’Halloran is also serving
an unchallenged concurrent life sentence for carjacking). As
for his § 924(c) claim, the Government seeks dismissal on grounds that it is untimely. For the reasons discussed below,
Petitioner’s motion is granted in part, and stayed in part.
Analysis
1. The Concurrent Sentence Doctrine
O’Halloran was convicted in 1997 of numerous crimes
including: carjacking, racketeering, robbery, conspiracy to
commit robbery, felon in possession of a firearm, and use of a
firearm during a crime of violence. He was sentenced to life in
prison. The Government correctly points out that, even granting
O’Halloran the relief he seeks, neither his term, nor the
conditions of his imprisonment, will change: he will remain in
prison, serving a life sentence. Accordingly, the government
argues that the concurrent sentence doctrine counsels against
resolving the limited claims raised in O’Halloran’s petition.
The concurrent sentence rule provides that a sentencing
error is harmless if a defendant would not spend less time in
prison even if that error were corrected, because he is serving
a concurrent sentence of the same or greater length for another
conviction which was not challenged. While the rule remains
viable in this circuit, our Court of Appeals is “aware of the
disfavor that the Supreme Court cast upon the concurrent
sentence rule in Benton v. Maryland, 395 U.S. 784 (1969).”
2 Vanetzian v. Hall, 562 F.2d 88, 90 (1st Cir. 1977). The Supreme
Court has acknowledged that the concurrent sentence rule may
have “some continuing validity as a rule of judicial
convenience” but, that equal concurrent sentences do not present
a jurisdictional bar to review. Benton, 395 U.S. at 791, 793.
The Court noted that in a situation where a future successful
challenge to one sentence would require review of the sentence
presently challenged, it is “certainly preferable” to conduct
the review now, rather than later. Id. at 793. In this case,
while a future successful challenge to O’Halloran’s carjacking
sentence is unlikely, still, it seems preferable to resolve the
claims made now, rather than invoke the convenience of the
concurrent sentence rule.
2. Challenge to Sentence under 18 U.S.C. § 924(e) (ACCA)
O’Halloran first challenges his sentences on two counts of
being a Felon in Possession of a Firearm, imposed pursuant to
the ACCA, 18 U.S.C. § 924(e)(2)(B). That statute prescribes a
minimum sentence of fifteen years and a maximum sentence of life
in prison for a defendant with three prior “violent felony”
convictions. At the time of O’Halloran’s sentencing, a prior
conviction qualified as a predicate “violent felony” if it was
for “burglary, arson, or extortion, [or] involve[d] use of
3 explosives” (referred to as the “enumerated crimes clause”);
“has as an element the use, attempted use, or threatened use of
physical force against the person or property of another,”
(referred to as the “elements clause”); or if the crime
“otherwise involves conduct that presents a serious potential
risk of physical injury to another” (referred to as the
“residual clause”). 18 U.S.C. § 924 (e)(2)(B)(i)-(ii). In
Johnson v. United States, the Supreme Court struck down the
residual clause of §924(e)(2)(B) as unconstitutionally vague.
135 S. Ct. at 2563. Therefore, if any of O’Halloran’s three
prior “violent crime” convictions satisfy the residual clause,
but not the elements or the enumerated crimes clause, of
§ 924(e), then his current sentence is necessarily invalid, and
O’Halloran is entitled to relief.
At sentencing, the court adopted the presentence report and
determined that O’Halloran was an Armed Career Criminal, based
on predicate state convictions for Armed Assault with Intent to
Murder (MA), Armed Bank Robbery (MA), and Assault with a
Dangerous Weapon (RI). O’Halloran argues, and both the
Government and United States Probation Office agree, that a
Rhode Island Conviction for Assault with a Dangerous Weapon
(ADW) does not qualify as a “violent felony” under the elements
clause of the ACCA. See United States v. Sabetta, 221 F. Supp.
3d 210 (D.R.I. 2016) (holding that because “recklessness” is
4 sufficient to support an ADW conviction in Rhode Island, such a
conviction could not serve as an ACCA predicate under the
categorical analytical approach). See Gov. Objection (document
no. 9) at 1 n.1; U.S. Probation Memo (document no. 6) at para.
1. O’Halloran, then, had only two qualifying violent felony
convictions, and the ACCA sentence enhancement was inapplicable
to him. Accordingly, the motion for sentence relief under
Johnson is necessarily granted. O’Halloran’s affected sentences
will be reduced to the low end of the correctly calculated
applicable Guideline Sentencing Range, and a revised judgment
reflecting that modification shall issue.
3. Challenge to Conviction Under 18 U.S.C. § 924(c)
O’Halloran also challenges his two convictions for use of a
firearm during a crime of violence (18 U.S.C. § 924(c)). The
Court of Appeals for the First Circuit granted petitioner leave
to file this second § 2255 petition because his ACCA claim
satisfied the prerequisites set out in 28 U.S.C. § 2255(h)(2).
O’Halloran v. United States, No. 16-1772 (1st Cir. July 13,
2017) (ECF document no. 1-1). However, the court took “no
position whatsoever” with respect to whether petitioner could
properly raise Johnson claims challenging his § 924(c) sentence.
Id. (quoting United States v. MacDonald, 641 F.3d 596, 615 (4th
5 Cir. 2011) (taking position that the district court should “more
closely scrutinize each claim and dismiss those that are barred
under § 2255(h)”) (internal quotations omitted).
A second or successive petition may be certified for
district court consideration if it is based upon “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.”
28 U.S.C. § 2255(h)(2). Petitioner does not directly
demonstrate that his § 924(c) challenge meets the requirements
of § 2255(h)(2). He argues, instead, that Johnson’s holding
invalidating the residual clause of the ACCA, made retroactive
in Welch, necessarily requires that the similarly worded
residual clause found in § 924(c)(3) be struck down.
As previously discussed in earlier cases in this district
(in the context of § 2255(f), the statute of limitations),
Johnson does not clearly announce a new rule of constitutional
law invalidating § 924(c)’s similar residual provision, because
“a substantial number of capable jurists have reasonably
determined after careful analysis that Johnson does not require
invalidation of § 924(c)’s residual clause.” Rawnsley v. United
States, Case No. 16-cv-190 SM, 2016 WL 6407843 at *1 (D.N.H.
Oct. 28, 2016) (quoting Kucinski v. United States, Case No. 16-
cv-201-PB, WL 4926157 at *9 (D.N.H. Sept. 15, 2016).
6 The law, however, continues to evolve. In Sessions v.
Dimaya, the Supreme Court recently applied Johnson to strike
down the residual clause used in defining a “crime of violence”
under the provisions of 18 U.S.C. § 16(b). Sessions v. Dimaya,
138 S. Ct. 1204, 1223 (2018). The dissent in Dimaya noted that
§ 16(b)’s definition of a crime of violence is identical to the
definition found in § 924(c)(3). 138 S. Ct. at 1241 (Roberts,
C.J., dissenting). While Chief Justice Roberts “express[ed] no
view on whether 924(c) can be distinguished from [§ 16(b)],”
id., other circuit courts have determined that the language used
in the two statutes is indistinguishable, and so have held the
residual clause aspect of § 924(c) unconstitutionally vague.
See United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018)
(holding § 924(c) unconstitutionally vague based on Dimaya); see
also United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016)
(a pre-Dimaya case holding § 924(c) unconstitutionally vague
based on circuit precedent applying Johnson).
It is likely that our court of appeals will soon clarify
whether Johnson is retroactively applicable to § 924(c) in light
of Dimaya. This court’s decision in Rawnsley, (holding that
Johnson does not invalidate § 924(c)), is on appeal to the First
Circuit, and that proceeding was stayed pending the Supreme
Court’s decision in Dimaya. Because the issues raised in
Rawnsley are substantially similar to those presented here, it
7 seems appropriate to await a controlling decision in Rawnsley.
There can be no prejudice to petitioner or the government
occasioned by a reasonable delay since petitioner will not be
entitled to release even if he should eventually prevail.
Accordingly, O’Halloran’s challenge to his conviction under 18
U.S.C. § 924(c) is stayed pending the Court of Appeals’ decision
in Rawnsley v. United States, No. 16-2321.
Conclusion
For the forgoing reasons, O’Halloran is presently entitled
to relief from his sentences imposed based in part on the
residual clause of the Armed Career Criminal Act 18 U.S.C.
§ 924(e). The extent of Johnson’s application to § 924(c) will
likely be resolved authoritatively by the Court of Appeals in
the Rawnsley case. Accordingly, O’Halloran’s petition to vacate
and correct his sentence imposed under the ACCA is GRANTED, and
his motion to vacate his conviction under § 924(c) is STAYED
pending resolution of Rawnsley v. United States, No. 16-2321
(1st Cir. 2016).
8 SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
July 31, 2018
cc: Charles J. Keefe, Esq. Seth R. Aframe, AUSA