Stephen G. Burke, Petitioner v. United States of America, Respondent

2018 DNH 155

• Court: District Court, D. New Hampshire
• Decided: July 31, 2018
• Docket: 17-cv-328-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Stephen G. Burke, Petitioner

v. Case No. 17-cv-328-SM Opinion No. 2018 DNH 155 United States of America, Respondent

O R D E R

Petitioner, Stephen Burke, 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, that his prior assault

with intent to murder conviction cannot serve as an ACCA

predicate.

The Government counters that Burke does not qualify for

relief on his ACCA claim, and further suggests that the claim

need not be resolved in this case, given the “concurrent

sentence doctrine” (Burke is also serving an unchallenged

concurrent life sentence for carjacking). For the reasons

discussed below, Petitioners motion is denied. Analysis

1. The Concurrent Sentence Doctrine

Burke was convicted in 1997 of numerous crimes including:

carjacking, 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 petitioner 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 takes the view that

the concurrent sentence doctrine counsels against resolving the

limited claims raised in Burke’s petition.

The concurrent sentence rule provides that a sentencing

error is harmless if a defendant will 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).”

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

2 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 Burke’s carjacking

sentence is unlikely, still, it seems preferable to resolve his

pending claim made now, rather than invoke the convenience of

the concurrent sentence rule.

2. Challenge to Sentence under 18 U.S.C. § 924(e) (ACCA)

Burke first challenges his sentence for 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 Burke’s sentencing, a prior conviction qualified as a

predicate “violent felony” if it was for “burglary, arson, or

extortion, [or] involve[d] use of 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

3 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 Burke’s three prior “violent crime” convictions can

satisfy the residual clause, but not the elements, or the

enumerated crimes, clause of § 924(e), then his current sentence

is necessarily invalid, and Burke is entitled to relief.

At sentencing, the court adopted the presentence report

(PSR) and determined that Burke was an armed career criminal,

based on two federal bank robbery convictions and one

Massachusetts conviction for Assault with Intent to Murder.

Burke argues that a Massachusetts Conviction for Assault with

Intent to Murder does not qualify as a “violent felony” under

the elements clause of the ACCA, because that statute could

support a conviction based on mere offensive touching. He cites

Massachusetts v. Smith, holding that the physical act of biting

a corrections officer, coupled with defendant’s knowledge that

he was HIV positive, was sufficient to support a conviction for

assault with intent to murder. Massachusetts v. Smith, 58 Mass.

App. Ct. 381, 386 (2003).

4 This argument is foreclosed, however, by the First

Circuit’s opinion in United States v. Edwards, 857 F.3d 420, 427

(1st Cir. 2017). In that case, the court of appeals held that a

Massachusetts armed assault with intent to murder conviction

does qualify as an ACCA predicate. Id. The court reasoned that

while the assault element of that statute could be satisfied by

mere offensive touching, “the intent-to-murder element makes it

implausible that a defendant could be convicted under this

statute based on an offensive-touching approach.” Id. at 425.

The court also rejected defendant’s claims that poisoning could

constitute “intent to murder” without the use of physical force

required by the ACCA. Id. at 426. As the Supreme Court has

explained, poisoning involves the use of force because “it is

the act of employing poison knowingly as a device to cause

physical harm.” Id. (quoting United States v. Castleman, 134

S. Ct. 1405, 1415 (2014)). Burke’s example, involving a bite by

an HIV positive person, is but an extension of the poisoning

example rejected in Edwards.

While Burke’s conviction for assault with intent to murder

does not include an “armed” element, the Edwards court’s

conclusion that the intent-to-murder element requires the use,

attempted use, or threat of “force capable of causing physical

pain or injury to another person,” applies equally here. See

Id. at 427 (quoting Johnson v. United States, 559 U.S. 133, 140

5 (2010). Accordingly, Burke’s Massachusetts assault with intent

to murder conviction does qualify as a “violent felony” under

the elements clause of the ACCA.

Burke implicitly acknowledges that his prior bank robbery

convictions qualify as violent felonies under the ACCA.

Accordingly, Burke had three prior violent felony convictions,

under the elements or enumerated crimes clauses of the ACCA, and

he is not entitled to sentence relief under Johnson.

Conclusion

For the forgoing reasons, Burke is not entitled to relief

from his sentences imposed based in part on the Armed Career

Criminal Act, 18 U.S.C. § 924(e). Burke’s petition (document

no. 17) to vacate and correct his sentence is DENIED.

The court declines to issue a certificate of appealability,

but petitioner may seek a certificate from the Court of Appeals

under Federal Rule of Appellate Procedure 22. See Rule 11,

Federal Rules Governing Section 2255 Proceedings.

6 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

July 31, 2018

cc: Matthew G. Stachowske, Esq. Seth R. Aframe, AUSA