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Criminal - Habeas corpus - Crimes of violence.

Byline: Mass. Lawyers Weekly Staff

Where petitioners for habeas corpus argued that their sentences had been improperly enhanced because their predicate offenses were not "crimes of violence" within the meaning of 18 U.S.C. 924(c)(3), the sentences were upheld based on binding precedent from the 1st U.S. Circuit Court of Appeals.

"The Government contends that [William Brymer and James Turpin's] claims are untimely because they fall outside the one-year limitation period for habeas corpus petitions set by [28 U.S.C.] 2255(f). ...

"Given that I conclude Brymer and Turpin cannot succeed on the merits, I need not definitely resolve the timeliness issue, other than to observe there is conflicting caselaw. ...

"Additionally, the Government contends that Brymer and Turpin[] procedurally defaulted their claims because they did not raise them at the time of sentencing or on direct appeal. ...

"Some of my colleagues who have addressed the issue of 'cause' in the context of claims after [Johnson v. United States, 135 S.Ct. 2551 (2015) ('Johnson II')] have concluded that Johnson II 'created a monumental shift in the law, explicitly overruled Supreme Court precedent as it existed at the time of [the defendant's sentencing] and, thus, generated a novel claim and supplied cause for procedural default. ...' For the purposes of this memorandum, I accept the proposition that the decision in Johnson II, when read with the Supreme Court's decision in Sessions v. Dimaya, [138 S.Ct. 1204 (2018),] shifted the law sufficiently to provide the requisite cause. ...

"In addition to demonstrating cause, to overcome procedural default, a petitioner must also show 'actual prejudice resulting from the errors of which he complains.' I ultimately conclude that Brymer and Turpin are not successful on the merits. The 'prejudice inquiry dovetails with the merits inquiry.' Consequently, I turn now to the merits, recognizing that resolution of the merits resolves the procedural default issue of prejudice as well. ...

"Brymer and Turpin claim that the predicate offenses (federal bank robbery and carjacking) for their convictions do not constitute crimes of violence under the force clause (also referred to as the 'elements clause') of [18 U.S.C.] 924(c)(3).

"The force clause of 924(c)(3) defines a crime of violence as an offense that is a felony and 'has as an element the use, attempted use, or threatened use of physical force against the person or property of another.' 924(c)(3)(A). Binding First Circuit precedent holds that the predicates for Brymer and Turpin's convictions are such felonies.

"As to the predicate crime of bank robbery the First Circuit has held that 'federal bank robbery, and a fortiori federal armed bank robbery, are crimes of violence under the force clause of 924(c)(3).' Hunter v. United States, 873 F.3d 388, 390 (1st Cir. 2017).

"As to the predicate crime of carjacking the First Circuit has held that carjacking constitutes a 'crime of violence' pursuant to the force clause of 924(c)(3) as well. United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st Cir. 2018).

"Consequently, both predicate crimes that were the bases for Brymer and Turpin's 924(c) convictions were crimes of violence under the force clause. ... [T]heir convictions properly stand."

Brymer v. U.S. (Lawyers Weekly No. 02-021-19) (12 pages) (Woodlock, J.) (Docket No. 1:03-cr-10327-DPW) (Jan. 10, 2019).

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Title Annotation:Brymer v. U.S, U.S. District Court for the District of Massachusetts
Publication:Massachusetts Lawyers Weekly
Date:Jan 23, 2019
Previous Article:Tort - Federal Tort Claims Act - Motion to dismiss.
Next Article:Jury and jurors - Grand jury instructions - Disclosure.

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