United States Court of Appeals
For the First Circuit
No. 05-2220
CHRIS POWELL,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John P. Woodcock, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell and Stahl, Senior Circuit Judges.
Chris Powell, Request for a Certificate of Appealability
with Brief in Support pro se.
December 1, 2005
Per Curiam. At age twenty, Petitioner Chris Powell was
convicted in Maine state court of eluding a police officer. The
statute under which he was convicted prohibited driving at a
reckless rate of speed while being pursued by a police vehicle
making use of its siren and blue light. 29 Maine Revised Statutes
§ 2501-A(3)(since superseded).
At age twenty-one, Petitioner was convicted of burglary.
At age twenty-two, he was convicted of another burglary. At age
thirty-one, he was found in possession of a shotgun. He was
charged with being a felon in possession of a firearm. 18 U.S.C.
§ 922(g)(1). He pled guilty, and the United States District Court
for the District of Maine treated each of these previous
convictions in state court as 'violent crime' predicates for
purposes of sentencing Petitioner to the mandatory minimum term of
fifteen years imprisonment under the federal Armed Career Criminal
Act (ACCA). See 18 U.S.C. § 924(e).
The firearm in question was a shotgun that Petitioner
says he inherited from his deceased father. The weapon was found
in his possession when law enforcement authorities investigating a
series of burglaries and thefts in early 2003 executed a search
warrant at Petitioner's residence. Petitioner was arrested and
charged with a number of stealing offenses, plus drug possession
and unlawful gun possession. When he was sentenced by the federal
district court under the ACCA, these state charges were still
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pending.
Petitioner has brought a motion under 28 U.S.C. § 2255 to
vacate the sentence, arguing that his counsel provided him
ineffective assistance by not objecting to the use of his
conviction for eluding police as a violent-crime predicate under
the ACCA. At the outset, we note that the state of the law at the
time of Petitioner's sentencing gave scant indication that such an
objection was likely to succeed. There was little case law, and
the two opinions directly on point both went against Petitioner's
position. United States v. Howze, 343 F.3d 919 (7th Cir. 2003);
United States v. James, 337 F.3d 387 (4th Cir. 2003). Then, just
over three months before Petitioner's sentencing, this Court held
that a prisoner's escape from custody, made by simply walking away
from a halfway house, qualified as a violent crime for purposes of
sentencing a defendant as a career offender under federal law.
United States v. Winn, 364 F.3d 7 (1st Cir. 2004).
In Winn, we endorsed the broad proposition that any
'escape scenario' was like a 'powder keg,' ready to explode into
violence when officers attempted to recapture the escapee. Id. at
11-12. The reasoning set forth in Winn concerning escape offenses
extends easily to evasive driving offenses. It is thus far from
clear that defense counsel would dip below the bench mark for
effective advocacy by failing to raise an objection to the use of
Petitioner's evasive driving conviction as an ACCA sentencing
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predicate, even if the objection would later be determined to have
merit. See, e.g., Korhahrens v. Evatt, 66 F.3d 1350, 1360 (4th
Cir. 1995)("the case law is clear that an attorney's assistance is
not rendered ineffective because he failed to anticipate a new rule
of law")(citing cases). Advocating changes in recent precedent may
occasionally be required of competent counsel, but it would take
unusual circumstances.
In any event, the sentencing issue raised by Petitioner
is a recurring one, but one that this Circuit has not yet
addressed. We think that the merits of the Petitioner's argument
about his ACCA sentence, underlying his claim of ineffective
assistance, is the most appropriate basis for resolving this
matter.
Recently, Petitioner's contentions concerning the use of
convictions for evasive driving as ACCA predicates have been raised
by other defendants before federal courts across the country. A
consensus has emerged that evasive driving offenses, like prison
escapes, constitute a category1 of 'violent' crime within the
meaning of the ACCA's provision for "conduct that presents a
serious potential risk of physical injury to another." 18 U.S.C.
§ 924(e)(2)(B)(ii). See United States v. Howze, 343 F.3d 919 (7th
1
See Shepard v. United States, 125 S.Ct. 1254, 1259
(2005)(applying "categorical criterion" to define violent offenses
under the ACCA); Taylor v. United States, 495 U.S. 575, 600
(1989)(same).
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Cir. 2003)(analogizing between escapes from custody and flights to
avoid arrest in treating defendant's violation of Wisconsin statute
as ACCA predicate); United States v. James, 337 F.3d 387 (4th Cir.
2003)(reasoning that disobedience of police officer's signal to
stop in violation of South Carolina statute "poses the threat of
direct confrontation between the police officer and the occupants
of the vehicle"); United States v. Martin, 378 F.3d 578 (6th Cir.
2004)(stating, with respect to violation of Michigan statute, that
"by making a deliberate choice to disobey a police officer, the
motorist provokes an inevitable, escalated confrontation with the
officer."); United States v. Kendrick, 423 F.3d 803 (8th Cir.
2005)(stating, with respect to violation of Oregon statute, that
"the conduct associated with the commission of felony fleeing calls
to mind the risks associated with escape and automobile theft").
See also United States v. Rosas, 410 F.3d 332 (7th Cir.
2005)(following Howze as controlling in categorizing the Wisconsin
statute); United States v. Albritton, 135 Fed.Appx. 239 (11th Cir.
June 10, 2005)(unpublished decision concerning Florida's
'aggravated fleeing and eluding' statute)(Westlaw); United States
v. Howard, Nos. 04-4099, 04-4172, 2005 WL 2471000 (6th Cir. Oct. 6,
2005)(unpublished opinion treating Martin case as controlling
categorization of Ohio's evasive driving statute); United States v.
Clark, Nos. Civ. 05-3280-SAC, CR 99-4007601-SAC, 2005 WL 1925646
(D. Kan. Aug. 10, 2005)(as a matter of first impression within the
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10th Circuit, adopting the reasoning of the Howze case in
categorizing the Kansas evasive driving statute).
We recognize that the Ninth Circuit has determined that
violations of Washington state's superceded evasive driving law
were not categorically violent within the meaning of the ACCA,
because that statute criminalized mere risk to property, even
without threat to persons. United States v. Kelly, 422 F.3d 889
(2005)("the question is whether all conduct -- including the most
innocent conduct -- prohibited by the state statute qualifies as a
'violent felony'"); United States v. Ogle, No. 04-30328, 2005 WL
1950882 (9th Cir. Aug. 16, 2005). The Maine statute under which
the Petitioner was convicted, however, does not address
recklessness towards property, so these two Ninth Circuit cases are
distinguishable even if we were otherwise disposed to follow these
decisions.
The use of Petitioner's conviction for eluding police as
an ACCA predicate comports with the sound reasoning of the
majority-view cases cited above. The statute under which
Petitioner was convicted provided that
Whoever, after being requested or signaled to
stop, attempts to elude a law enforcement
officer by driving a vehicle at a reckless
rate of speed which results in a high-speed
chase between the operator's vehicle and any
law enforcement vehicle using a blue light and
siren is guilty [of a felony-level crime].
29 Maine Revised Statutes § 2501-A(3)(since superseded). We agree
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with the view that high-speed car chases pose a grave threat of
death and injury by collision, as well as escalated confrontations
between suspects and police. Such a category of crime manifestly
"involves conduct that presents a serious potential risk of
physical injury to another" within the meaning of the ACCA. See 18
U.S.C. § 924(e)(2)(B)(ii).
We hold that Petitioner's conviction for eluding police
is a proper violent-crime predicate under the ACCA. Since we
reject the Petitioner's contention that his evasive-driving
conviction was not a valid ACCA sentencing predicate, it follows
that his claim of ineffective assistance based on his defense
counsel's failure to raise the contention presents no substantial
issue for appeal.
Petitioner Chris Powell's request for a certificate of
appealability is denied.
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