USA v. Forte

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL FORTE,
Defendant.
Case No. 3:15-cr-00062-SLG
ORDER RE MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255
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
1 Although Mr. Forte’s motion lists him as the petitioner and the government as the respondent,
a claim under 28 U.S.C. § 2255 is a continuation of the underlying criminal proceeding. Grady
v. United States, 929 F.2d 468, 470 (9th Cir. 1991) (Ҥ 2255 is a further step in a defendant's
criminal case rather than a separate civil action.”).
2 28 U.S.C. § 2255(b).
3 Docket 90 at 2; Docket 101 at 2.
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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
4 Docket 101 at 3.
5 Docket 90 at 2; Docket 3–4. The Alaska Department of Public Safety determined that Mr.
Forte’s Massachusetts state conviction triggered his obligation to register in Alaska. Docket 101
at 4.
6 Docket 22-3.
7 Docket 22.
8 Docket 22; Docket 22-2; Docket 27.
9 Docket 27.
10 Docket 47; Docket 90 at 3.
11 28 U.S.C. § 2255(f)(1).
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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
12 Docket 102 at 3. Mr. Forte expressly disavows that he is seeking to file a § 2241 petition.
Docket 102 at 3 (“Mr. Forte need not avail himself of § 2255’s ‘escape hatch’ to file a § 2241
petition, because his § 2255 petition [motion] is properly before the court.”).
13 See United States v. Dailey, No. 18-10134, 2019 WL 5688814 at *9 (9th Cir. Nov. 4, 2019).
14 18 U.S.C. § 2250(a).
15 34 U.S.C. § 20913(a). “Defendants are not directly convicted of violating SORNA. Rather, the
law applies to violations of existing state and federal criminal laws and mandates the registration
of a ‘sex offender’ ‘in each jurisdiction where the offender resides, where the offender is an
employee, and where the offender is a student.’” Dailey, 2019 WL 5688814 at *4.
16 34 U.S.C. § 20911(1); see also United States v. Pope, 2019 WL 1919164 at *2 (slip copy) (D.
Nev. Apr. 30, 2019) (“SORNA provides a multi-faceted definition to the term ‘sex offender.’”).
17 34 U.S.C. §§ 20911(1), 20911(5)(a)(i).
18 18 U.S.C. § 2246(2) (definition of a “sexual act”); 18 U.S.C. § 2246(3) (definition of “sexual
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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
contact”).
19 Docket 90 at 4–6.
20 The government does not address Mr. Forte’s categorical approach argument and instead
maintains that Mr. Forte’s § 2255 motion is procedurally defaulted. Docket 101 at 11–15.
21 34 U.S.C. § 20911(5)(A)(ii).
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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
22 34 U.S.C. § 20911(7)(I).
23 Dailey, 2019 WL 5688814 at *11; Pope, 2019 WL 1919164 at *2.
24 Docket 103 at 2 (partial transcript of entry of plea).
25 Dailey, 2019 WL 5688814 at *7.
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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.
26 Dailey, 2019 WL 5688814 at *6 (quoting United States v. Byun, 539 F.3d 982, 992 (9th Cir.
2008) (internal citations omitted, emphasis in Dailey).
27 Pope, 2019 WL 1919164 at * 3.
28 United States v. Dodge, 597 F.3d 1347, 1354 (11th Cir. 2010) (en banc).
29 Dailey, 2019 WL 5688814 at *13.
30 Mass. Gen. Law Ch. 265 § 13H (“Whoever commits an indecent assault and battery on a
person who has attained age fourteen shall be punished by imprisonment in the state prison for
not more than five years, or by imprisonment for not more than two and one-half years in a jail
or house of correction.”).
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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 defaulted § 2255 motion is
not saved by an equitable tolling of the statute of limitations.
In light of the foregoing, IT IS ORDERED that the motion at Docket 90 is denied.
The Court declines to issue a certificate of appealability, as Mr. Forte has not “made a
substantial showing of the denial of a constitutional right.”35 The Clerk of Court is directed
to enter a final judgment in Case No. 3:19-cv-00183.
31 Docket 40 at 7–9.
32 Docket 90 at 5 (citing Commonwealth v. Lavigne, 676 N.E.2d 1170 (Mass. Crt. App. 1997).
33 Docket 40 at 8.
34 See Byun, 539 F.3d at 988 (using “common sense” to determine that “transporting a minor to
the United States with the intent that she engage in prostitution” was “conduct that by its nature
is a sex offense against a minor”).
35 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (To make a
substantial showing, the movant must show “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner of that
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DATED this 19th day of November, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
the issues presented were adequate to deserve encouragement to proceed further.”) (internal
quotations and citations omitted).
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