Marshall v. United States ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1801
JAMES T. MARSHALL,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
James T. Marshall on brief pro se.
Donald K. Stern, United States Attorney, and Timothy Q.
Feeley, Assistant U.S. Attorney, on brief for appellee.
September 10, 2001
Per Curiam. After pleading guilty in 1993 to being
a felon in possession of a firearm, see 18 U.S.C. §
922(g)(1), petitioner James Marshall was given an enhanced
sentence under the Armed Career Criminal Act (ACCA) because
he had three previous convictions for a "violent felony" or
a "serious drug offense," id. § 924(e)(1). Indeed, it was
uncontested at sentencing that he had more than the
requisite three predicates; of petitioner's numerous state
court convictions, the presentence report (PSR) identified
five that so qualified. Petitioner later filed this
petition under 28 U.S.C. § 2255, asserting that four of
those five convictions no longer were, or never had been,
valid ACCA predicates.1 In response, the government accepted
that allegation as true. It nonetheless argued that the
enhanced sentence could be upheld by relying on two other
previous convictions that had been listed in the PSR but not
there designated as ACCA predicates. These would provide
the required three predicates, it asserted, when combined
with the earlier one that remained unchallenged. Over
petitioner's objections, the district court agreed with this
1 He alleged that one predicate had since been invalidated
in state court, two others no longer qualified because of
intervening case law, and the fourth had never qualified.
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reasoning and thus denied the petition. It later granted a
certificate of appealability. We affirm substantially for
the reasons recounted in the district court's comprehensive
opinion, adding only the following comments.
The two substitute predicates consist of a 1974
conviction for larceny from the person (No. 81260) and a
1974 conviction for attempted larceny from the person (No.
81261), both of which were listed in ¶ 47 of the PSR. The
principal dispute below was whether these offenses
constituted felony convictions under Mass. Gen. Laws ch.
266, § 25(b) or misdemeanor convictions under ch. 266, §
30(1). The former provision concerns larceny from the
person; the latter involves generic larceny. Based on its
review of certain state court records, the district court
determined that the ¶ 47 offenses were felonies prosecuted
under § 25(b). We agree. Even without taking judicial
notice of the supplemental records submitted by the
government for the first time on appeal, see United States
v. Bregnard, 951 F.2d 457, 460 n.2 (1st Cir. 1991), we find
the court's conclusion amply supported. For example, in No.
81260, the juvenile court docket sheet specifically cited to
§ 25; the superior court indictment charged that petitioner
"did steal from the person"; and the docket sheet described
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the offense as "[l]arceny from the person." Similarly, in
No. 81261, the indictment alleged that petitioner "did
attempt to steal from the person"; and the docket sheet
listed the offense as "[a]ttempt to commit larceny from
person."
On appeal, petitioner concedes that the ¶ 47
offenses were for larceny from the person (actual and
attempted), but goes on to contend that he could have been
convicted therefor under § 30(1). To the contrary, the case
law and relevant authorities all tie that offense to §
25(b).2 See, e.g., United States v. De Jesus, 984 F.2d 21,
23 (1st Cir. 1993); Commonwealth v. Moorer, 431 Mass. 544,
545 (2000); J. Nolan & B. Henry, 32 Mass. Practice: Criminal
Law § 291 (1988 & '00 Supp.). We find Commonwealth v.
Lashway, 36 Mass. App. Ct. 677 (1994), particularly
instructive. There, a defendant convicted of unarmed
robbery complained of being denied a lesser-included
instruction for larceny under § 30(1). The court affirmed,
finding the evidence clear that whatever taking had occurred
"was indubitably from the person." Id. at 683. It added
2 Like the district court, we think the citation to § 30 in
the district attorney's recent state court briefing (addressing
petitioner's motion to withdraw his plea) was a simple
typographical error, especially since the offense was there
specifically described as larceny from the person.
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that, for this reason, the lesser-included offense of
larceny from the person under § 25(b) might have been
charged, but no such request had been made. See id. In any
event, in the instant case there is not the slightest hint
that petitioner's ¶ 47 convictions involved § 30(1).3
Petitioner next contends that the ¶ 47 offenses do
not qualify as ACCA predicates because, even though he was
tried as an adult, he was a juvenile when he committed them.
This argument was never squarely presented below and has
been advanced only in perfunctory fashion on appeal--and so
has arguably been waived. See, e.g., United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Petitioner in any
event has offered nothing to call into question the solid
line of authority holding to the contrary. See, e.g.,
United States v. Cure, 996 F.2d 1136, 1139-41 (11th Cir.
1993); United States v. Lender, 985 F.2d 151, 155-57 (4th
Cir. 1993).
3 We likewise agree with the district court that No. 81261
was subject to the "second," rather than the "fourth," paragraph
of Mass. Gen. Laws ch. 274, § 6--the statutory provision
prescribing punishment for attempted crimes. We might add that
petitioner would not benefit even if it were otherwise. Since
the "fourth" paragraph carries a maximum term greater than two
years, a violation thereof, even though a misdemeanor under
state law, would still qualify as a "violent felony" under the
ACCA. See, e.g., Bregnard, 951 F.2d at 460-61 (applying 18
U.S.C. § 921(a)(20)).
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Again without developed argumentation, petitioner
also asserts that to now rely on convictions that were
listed in the PSR but not there identified as predicates
would violate due process. We have explained that pretrial
notice of the possibility of enhanced sentencing for
recidivism is not necessary, but that due process does
require "reasonable notice of and an opportunity to be heard
concerning the prior convictions." United States v.
Craveiro, 907 F.2d 260, 264 (1st Cir. 1990); accord, e.g.,
United States v. O'Neal, 180 F.3d 115, 125-26 (4th Cir.) ("a
defendant does have a right to adequate notice of ... the
convictions that may support [an ACCA] enhancement"), cert.
denied, 528 U.S. 980 (1999); United States v. Tracy, 36 F.3d
187, 198-99 (1st Cir. 1994) (holding that listing of
predicates in PSR is sufficient). Whether these protections
continue to apply after termination of the direct appeal,
where a predicate has been invalidated and the government
attempts to substitute another therefor, is a matter we need
not decide, for petitioner has received all process that
might be due. The government's habeas opposition, proposing
reliance on the ¶ 47 convictions, provided sufficient notice
to allow him "to contest the validity or applicability of
the prior convictions." United States v. Moore, 208 F.3d
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411, 414 (2d Cir.) (per curiam), cert. denied, 531 U.S. 905(2000). The main prejudice of which petitioner complains--
that intervening case law has allegedly made it more
difficult to collaterally attack his ¶ 47 convictions in
state court--is beyond the scope of the due process
safeguard in this context.
We have considered petitioner's remaining
contentions and find them without merit. We will briefly
mention four. First, he suggests that, because the two ¶ 47
convictions were consolidated in state court for pleading
and sentencing purposes, they constituted a single offense.
To the contrary, "crimes which were committed on different
dates ... and targeted different victims are to be treated
as distinct" under § 924(e). United States v. Sullivan, 98
F.3d 686, 688 (1st Cir. 1996). Second, he alleges that he
should have been permitted, in the § 2255 proceeding, to
challenge his ¶ 47 convictions. This argument is foreclosed
by Daniels v. United States, 121 S. Ct. 1578 (2001). Third,
he complains that his attorney rendered ineffective
assistance at sentencing in failing to challenge the listed
predicates. This claim fails inasmuch as three valid
predicates existed at that time and continue to exist today.
Finally, petitioner asks for "any relief he may have" under
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Apprendi v. New Jersey, 530 U.S. 466 (2000). He has none at
this time. Various courts, noting that Apprendi expressly
declined to overrule Almendarez-Torres v. United States, 523
U.S. 224 (1998), have rejected Apprendi-based challenges to
an ACCA enhancement. See, e.g., United States v. Skidmore,
254 F.3d 635, 641-42 (7th Cir. 2001).
Affirmed.
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