Marshall v. US, (1st Cir. 2001)

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[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]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

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 § 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 § 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

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 § 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

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 § 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).

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

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 § 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

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.

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.

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.

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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