Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 17-1069
SAMUEL DIXON,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Judith H. Mizner, Assistant Federal Defender, on brief for
appellant.
Andrew E. Lelling, United States Attorney, and Randall E.
Kromm, Assistant United States Attorney, on brief for appellee.
April 11, 2018
Per Curiam. We have said that every time Congress draws
a line, some people are bound to fall on the wrong side of it.
See Sprandel v. Sec'y of HHS, 838 F.2d 23, 27 (1st Cir. 1988) (per
curiam). If the deadline that Congress has chosen seems harsh
when applied in a given case, such a risk of perceived harshness
"is endemic to lines." Id. So it is here: the petitioner filed
his motion to vacate or correct his sentence one day after the
deadline established by Congress had expired. Consequently, his
motion was late — and the petitioner has not alleged any facts
that would suggest a justification for excusing the untimely
filing. Therefore, we summarily affirm the district court's order
of dismissal.
We start by rehearsing the travel of the case. In 2013,
petitioner-appellant Samuel Dixon was convicted of being a felon
in possession of a firearm and ammunition, see 18 U.S.C.
§ 922(g)(1), and was sentenced to a 220-month term of immurement.
He unsuccessfully appealed his conviction to this court and failed
in his effort to obtain review in the Supreme Court. See United
States v. Dixon, 787 F.3d 55 (1st Cir.), cert. denied, 136 S. Ct.
280 (2015).
On October 6, 2016 — exactly one year and one day after
the Supreme Court had denied review — the petitioner filed a motion
in the district court under 28 U.S.C. § 2255. That motion
challenged his status as a career criminal under the Armed Career
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Criminal Act (ACCA), 18 U.S.C. § 924(e), and sought to vacate or
correct his sentence. To place his challenge into a workable
perspective, some background is helpful.
The ACCA imposes higher mandatory minimum sentences on
career criminals, that is, defendants with three or more
convictions for violent felonies or serious drug offenses
(commonly referred to as "predicate offenses"). See id. When the
petitioner was sentenced in 2013, convictions could qualify as
convictions for violent felonies (and, thus, as predicate
offenses) under either the "residual" clause or the "force" clause
of the ACCA. See United States v. Starks, 861 F.3d 306, 314 (1st
Cir. 2017). The presentence investigation report prepared by the
probation department for the petitioner's sentencing enumerated
predicate offenses which, collectively, qualified the petitioner
as an armed career criminal. These offenses included a federal
conviction for armed bank robbery, two federal convictions for
unarmed bank robbery, a Massachusetts conviction for larceny, two
Massachusetts convictions for assault and battery with a dangerous
weapon (ABDW), two Massachusetts convictions for unarmed robbery,
and a Massachusetts conviction for possession of a controlled
substance. Given this litany of offenses, the district court
concluded that the petitioner should be sentenced as an armed
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career criminal.1 This determination produced a substantially
longer sentence than otherwise would have been imposed.
In Johnson I, the Supreme Court held that the force
clause of the ACCA requires violent force capable of causing
physical pain or injury to another person. See Johnson v. United
States (Johnson I), 559 U.S. 133, 140 (2010). Five years later,
in Johnson II, the Supreme Court ruled that the residual clause of
the ACCA's definition of violent felony was unconstitutionally
vague. See Johnson v. United States (Johnson II), 135 S. Ct. 2551,
2557 (2015). This decision opened the door for those individuals
who were sentenced as armed career criminals based on prior
convictions that qualified as predicate offenses under the
residual clause to challenge their sentences. See Welch v. United
States, 136 S. Ct. 1257, 1265 (2016). The petitioner brought just
such a challenge, filing a motion under 28 U.S.C. § 2255 to vacate
or correct his sentence in light of Johnson II. He alleged that
his prior state convictions for larceny, robbery, and ABDW, as
well as his prior federal convictions, no longer could count as
1 We do not imply that all of the listed offenses were
predicate offenses. Rather, the sentencing court determined that
at least three of them qualified as predicate offenses.
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predicate offenses in ascertaining his armed career criminal
status.2
The government objected to the motion both on timeliness
grounds and on the merits. With respect to timeliness, the
government argued that the motion was filed one day late and, thus,
was time-barred. The district court bypassed the temporal question
and went straight to the merits of the petitioner's claims. It
analyzed whether and to what extent his prior convictions qualified
as convictions for violent felonies under the still-constitutional
force clause of the ACCA. Examining the federal bank robbery
statute under which the petitioner had been convicted and noting
that several courts of appeals had recently held that the crime of
federal bank robbery, whether armed or unarmed, qualified as a
violent felony under the force clause, see, e.g., United States v.
McBride, 826 F.3d 293 (6th Cir. 2016); United States v. Jenkins,
651 Fed. App'x 920 (11th Cir. 2016); United States v. McNeal, 818
F.3d 141 (4th Cir. 2016),3 the district court ruled that the
2 The petitioner did not dispute that his prior controlled
substance conviction continued to qualify as a predicate offense
for ACCA purposes.
3 Some of the cases relied upon by the district court involved
determining whether bank robbery is a "crime of violence" under
the career offender provision of the sentencing guidelines. After
the district court ruled in this case, we similarly held that
federal bank robbery by "force and violence, or by intimidation"
is a crime of violence under the career offender guideline. United
States v. Ellison, 866 F.3d 32, 39-40 (1st Cir. 2017). Although
the career offender guideline uses the term "crime of violence"
and the ACCA uses the term "violent felony," the two terms have
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petitioner's three federal bank robbery convictions comprised
convictions for predicate offenses under the force clause of the
ACCA.4 On this basis, the court held that the petitioner was
properly sentenced as an armed career criminal and denied the
petitioner's motion. This appeal followed.
We are not wed to the district court's reasoning but,
rather, may affirm on any ground made manifest by the record. See
United States v. George, ____ F.3d ___, ___ (1st Cir. 2018) [No.
17-1371, slip op. at 15]; InterGen N.V. v. Grina, 344 F.3d 134,
141 (1st Cir. 2003). Although the district court chose to deny
the petition on the merits, we begin — and end — with the logically
antecedent question of timeliness, which we review de novo.
The controlling statute imposes a one-year period of
limitations on the filing of a motion to vacate or correct a
sentence. See 28 U.S.C. § 2255(f); see also Clay v. United States,
537 U.S. 522, 524 (2003). As relevant here, the limitations clock
starts to tick from the later of "the date on which the judgment
of conviction becomes final" or "the date on which the right
nearly identical meanings and, therefore, "decisions construing
one term inform the construction of the other." United States v.
Hart, 674 F.3d 33, 41 n.5 (1st Cir. 2012).
4 Subsequent to the district court's ruling, this court held
that federal bank robbery by "force and violence, or by
intimidation" qualifies as a crime of violence under the force
clause of 18 U.S.C. § 924(c), which is even broader than the ACCA
force clause. See Hunter v. United States, 873 F.3d 388, 390 (1st
Cir. 2017); see also 18 U.S.C. § 2113(a).
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asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review." 28 U.S.C.
§ 2255(f). Under the latter alternative, the limitations period
in section 2255 begins to run from the date that the right is first
recognized by the Supreme Court, not from the date that the Court
announces that the right is made retroactive. See Dodd v. United
States, 545 U.S. 353, 358-59 (2005). Thus, the petitioner had one
year from the later of these dates in which to move to vacate or
correct his sentence.
The date on which the petitioner's conviction became
final was October 5, 2015, when the Supreme Court denied certiorari
in his case. See Clay, 537 U.S. at 527. The date on which the
right asserted was initially recognized by the Supreme Court was
June 26, 2015, when the Supreme Court issued its opinion in Johnson
II. See 135 S. Ct. at 2251. It follows that the last possible
date on which the petitioner could have made a timeous filing of
his motion was October 5, 2016 (one year after the Supreme Court
denied his certiorari petition). See Clay, 537 U.S. at 527;
Butterworth v. United States, 775 F.3d 459, 468 (1st Cir. 2015).
Yet, the petitioner did not file his motion to vacate or correct
his sentence in the district court until October 6, 2016. That
was one day late.
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To be sure, the one-year limitations period for filing a
motion under section 2255 is non-jurisdictional and, thus, subject
to equitable tolling. See Ramos-Martínez v. United States, 638
F.3d 315, 322 (1st Cir. 2011). A court's power to invoke equitable
tolling must be exercised on a "case-by-case basis." Riva v.
Ficco, 615 F.3d 35, 39 (1st Cir. 2010) (quoting Holland v. Florida,
560 U.S. 631, 650 (2010)). And even where a court has the raw
power to invoke equitable tolling, that power should be exercised
"sparingly." Neverson v. Farquharson, 366 F.3d 32, 42 (1st Cir.
2004).
It is the petitioner's burden to demonstrate to a court
why the circumstances of his case justify equitable tolling of the
limitations period. See Holmes v. Spencer, 685 F.3d 51, 62 (1st
Cir. 2012). To carry this burden, the petitioner must show "(1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing." Holland, 560 U.S. at 649. Put simply, the petitioner
must satisfy the court that circumstances beyond his control
prevented him from filing his motion within the one-year window
provided by section 2255(f). See Lattimore v. Dubois, 311 F.3d
46, 55 (1st Cir. 2002).
The petitioner has not made such a showing. To begin,
he has not proffered any facts sufficient to justify his tardiness.
Indeed, he has not in any way attempted to justify his late filing.
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Nor does he give any reasons, compelling or otherwise, that would
support a decision to excuse his tardiness. To cinch matters, we
note that the issue of timeliness was clearly raised by the
government both in the district court and in this court, yet the
petitioner's briefing is wholly silent on the subject. This
"paucity of information" itself erects an insurmountable barrier
for the petitioner. Ramos-Martínez, 638 F.3d at 324. He has had
ample opportunity to attempt to justify his tardiness, and his
silence speaks volumes. Consequently, the one-year limitations
period controls.
We need go no further. For the reasons elucidated above,
the denial of the petitioner's motion to vacate or correct his
sentence is summarily
Affirmed. See 1st Cir. R. 27.0(c).
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