United States District Court, D. Alaska
ORDER RE MOTION TO VACATE SENTENCE PURSUANT TO 28
U.S.C. § 2255
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 90 is defendant Michael Forte's
Motion to Vacate Sentence Pursuant to 28 U.S.C. §
2255.[1] The government responded in opposition at
Docket 101. Mr. Forte replied to the government's
opposition at Docket 102. The Court finds that “the
motion and the files and records of the case conclusively
show that [Mr. Forte] is entitled to no relief” and
thus no hearing is required or necessary to the determination
of the motion.[2]
I.
Factual and procedural background
In
1999, Mr. Forte pleaded guilty to and was convicted of
Indecent Assault and Battery on a Person Aged 14 or Older in
violation of Massachusetts state law.[3] This conviction required him
to register as a sex offender under Massachusetts law, but he
did not comply with the Massachusetts registration
requirements.[4] In 2014, Mr. Forte left Massachusetts and
came to Alaska but also did not register as a sex offender in
Alaska.[5]
In
2015, Mr. Forte was charged in the District of Massachusetts
with failure to register as a sex offender in violation of 18
U.S.C. § 2250(a) due to his failure to register in
Massachusetts.[6] He was soon arrested in Alaska and
arraigned on the District of Massachusetts
complaint.[7] The case was transferred from the District
of Massachusetts to the District of Alaska pursuant to
Federal Rule of Criminal Procedure 20, and Mr. Forte was
arraigned on the Indictment returned in the District of
Massachusetts.[8] Mr. Forte pleaded guilty without a plea
agreement.[9] In October of 2015, the Court sentenced
him to 18 months, and he is now on supervised
release.[10] Mr. Forte did not appeal his conviction.
II.
Mr. Forte's procedural argument
Motions
pursuant to 28 U.S.C. § 2255 are subject to a one-year
statute of limitations.[11] Mr. Forte filed his § 2255
motion in June of 2019, more than three and a half years
after his judgment became final. Mr. Forte maintains that his
late motion should be excused because he is claiming actual
innocence, which equitably tolls the statute of
limitations.[12] Thus, Mr. Forte's claim of equitable
tolling “rises and falls with [his] claim on the
merits.”[13] The Court will consider the merits of
his actual innocence claim to determine whether his petition
is timely.
III.
Mr. Forte's actual innocence argument
The
federal statute under which Mr. Forte was convicted, 18
U.S.C. § 2250, criminalizes the knowing failure to
register or update a registration as required by the Sex
Offender Registration and Notification Act
(“SORNA”).[14] SORNA, in turn, requires that a
“sex offender” must register and keep the
registration current “in each jurisdiction where the
offender resides . . . .”[15] As relevant here, a
“sex offender” is someone who has been convicted
of a “sex offense.”[16] A “sex
offense” is defined as “a criminal offense that
has an element involving a sexual act or sexual contact with
another.”[17] SORNA does not define “sexual
act” or “sexual contact, ” but those terms
are defined in Title 18 of the United States
Code.[18]
Mr.
Forte asserts that under the categorical approach, his
Massachusetts state conviction does not trigger SORNA because
the Massachusetts law criminalizes a broader range of conduct
than SORNA includes in its definition of a “sex
offense.” Specifically, Mr. Forte contends that
Massachusetts state law defines “sexual contact”
more broadly than does the Title 18 definition and thus
“the definition of ‘sexual contact' necessary
to commit indecent assault and battery . . . is clearly not a
categorical match with the Title 18 definition of ‘sex
offense.'”[19] According to Mr. Forte, the
Massachusetts conviction thus does not qualify as a predicate
offense under SORNA.[20]
The
Court need not consider whether Massachusetts' definition
of “sexual contact” is a categorical match to
“sexual contact” as defined by federal law. Here,
Mr. Forte's conviction is for knowingly failing to
register as required under SORNA, not for knowingly failing
to register after being convicted of a crime that involved
“sexual contact.” Thus, any violation of
SORNA-regardless of the specific definition applied-supports
his conviction. Mr. Forte ignores that SORNA supplies other
definitions of “sex offense” that apply to his
case. A “sex offense” also includes “a
criminal offense that is a specified offense against a
minor.”[21] A “specified offense against a
minor” includes any offense against a minor that
involves “[a]ny conduct that by its nature is a sex
offense against a minor.”[22] This provision is known
as SORNA's residual clause or catchall
provision.[23] In its prosecution of Mr. Forte for
failing to register, the government specifically relied on
the residual clause as the basis for the facts it would prove
at trial: “In this case, it's the definition of a
specified offense against a minor. And that term specified
offense against a minor means an offense against a minor that
involves any conduct that by its nature is a sex offense
against a minor.”[24]
The
Ninth Circuit, relying on its earlier decision in United
States v. Byun, has recently held that “the only
acceptable interpretation of the residual clause is to apply
a non-categorical approach regarding the age of the
victim.”[25] The Ninth Circuit's reasoning
applies with equal force to support using the non-categorical
approach regarding the entirety of the residual clause:
In determining the residual clause called for a
non-categorical approach, we looked to three aspects of the
law. First, while Section 20911(5)(A)(i) defines a sex
offense as “a criminal offense that has an
element involving a sexual act or sexual contact
with another, ” Section 20911(5)(A)(ii), which
alternatively defines a sex offense as “a criminal
offense that is a specified offense against a minor, ”
“contains no reference to the crime's
‘elements.'” Second, in Section 20911(7),
which defines “a specified offense against a minor,
” the words “against a minor” precede a
general list of crimes-e.g., “kidnapping, ”
“false imprisonment, ” and “[u]se in a
sexual performance”- that do not reference the
victim's identity, suggesting, for example, that
“any kidnapping offense becomes a
‘specified offense against a minor' when the victim
is a minor.” Finally, and most pointedly, the residual
clause covers “any conduct that by its nature
is a sex offense against a minor.” The use of
“conduct” in the residual clause, as opposed to
“conviction, ” strongly indicates a
non-categorical approach applies.[26]
The
District of Nevada has also recently concluded that the
non-categorical approach applies in determining whether a
defendant's conduct in committing a predicate offense
satisfies the specified-offense portion of the residual
clause: “Nothing in the court's reasoning [in
Byun] indicates that it intended to limit the use of
the circumstance-specific approach to this fact [of the
victim's age].”[27] An en banc Eleventh
Circuit has also held that “[a]lthough the Ninth
Circuit [in Byun] focused only on the age of the
victim, its approach supports our conclusion that SORNA
permits examination of the defendant's underlying
conduct-and not just the elements of the conviction
statute-in determining what constitutes a ‘specified
offense against a minor.'”[28]
Applying
the non-categorical approach, a court examines “not
just the elements of the crime but also the ‘statutory
definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding
by the trial judge to which the defendant
assented.”[29] Mr. Forte was convicted of Indecent
Assault and Battery on Person Fourteen or
Older.[30] Although this statute proscribes conduct
that includes conduct directed at an adult victim, the
parties here do not dispute that the victim in Mr.
Forte's case was a sixteen-year old girl.[31] Mr. Forte
asserts that Massachusetts defines an indecent assault and
battery as an intentional and unjustified touching of a
private area, including, but not limited to, the breast,
abdomen, thigh, buttocks, genital or pubic areas of a
female.[32] Here, the parties do not dispute that
Mr. Forte's conduct involved him penetrating the
victim's vagina with his penis and then ejaculating on
her leg, despite her repeatedly telling him to stop, telling
him he was hurting her, and trying to physically force him
off of her.[33] This conduct is clearly a sex offense
against a minor.[34] It constitutes a “specified
offense against a minor” and, in turn, qualifies as a
“sex offense.”
Because
Mr. Forte was convicted of a sex offense as defined by SORNA,
he was required to register under SORNA's directives. His
knowing failure to do so violated 18 U.S.C. § 2250, and
he is not actually innocent of that crime. Because Mr. Forte
is not actually innocent of the crime of conviction, his
procedurally ...