Opinion
Criminal No. 10–40019–FDS
09-11-2017
Kirk LASSEND, Petitioner, v. UNITED STATES of America, Respondent.
Cory S. Flashner, Karin Michelle Bell, United States Attorney's Office, Worcester, MA, for Respondent.
Cory S. Flashner, Karin Michelle Bell, United States Attorney's Office, Worcester, MA, for Respondent.
MEMORANDUM AND ORDER ON MOTION FOR A CERTIFICATE OF APPEALABILITY
SAYLOR, J.
On October 14, 2014, Kirk Lassend filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The Court denied that petition on July 11, 2017. Lassend now seeks a certificate of appealability ("COA") in order to appeal the denial of his habeas petition. For the reasons that follow, that motion will be granted.
To appeal the final order in a proceeding instituted under 28 U.S.C. § 2255, the petitioner must first obtain a COA from a circuit justice or a district court. See 28 U.S.C. § 2253(c). A COA will issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). This standard is satisfied by "demonstrating that jurists of reason could disagree with the district court's resolution of [petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller–El v. Cockrell , 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ).
Petitioner contends that his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which was based on a finding that he had three prior convictions for "violent felonies" under the force clause of the ACCA, violates the constitution in light of the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Petitioner's contention, while ultimately rejected by this Court, represents a substantial showing of the denial of a constitutional right. Further, a reasonable jurist could disagree with the Court's conclusions.
Accordingly, a certificate of appealability is GRANTED as to petitioner's claim that his sentence under the ACCA was imposed in violation of the Constitution.