United States Court of Appeals

For the First Circuit

No. 05-2220

CHRIS POWELL,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John P. Woodcock, Jr., U.S. District Judge]

Before

 Boudin, Chief Judge,

Campbell and Stahl, Senior Circuit Judges.

Chris Powell, Request for a Certificate of Appealability

with Brief in Support pro se.

December 1, 2005
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Per Curiam. At age twenty, Petitioner Chris Powell was

convicted in Maine state court of eluding a police officer. The

statute under which he was convicted prohibited driving at a

reckless rate of speed while being pursued by a police vehicle

making use of its siren and blue light. 29 Maine Revised Statutes

§ 2501-A(3)(since superseded).

At age twenty-one, Petitioner was convicted of burglary.

At age twenty-two, he was convicted of another burglary. At age

thirty-one, he was found in possession of a shotgun. He was

charged with being a felon in possession of a firearm. 18 U.S.C.

§ 922(g)(1). He pled guilty, and the United States District Court

for the District of Maine treated each of these previous

convictions in state court as 'violent crime' predicates for

purposes of sentencing Petitioner to the mandatory minimum term of

fifteen years imprisonment under the federal Armed Career Criminal

Act (ACCA). See 18 U.S.C. § 924(e).

The firearm in question was a shotgun that Petitioner

says he inherited from his deceased father. The weapon was found

in his possession when law enforcement authorities investigating a

series of burglaries and thefts in early 2003 executed a search

warrant at Petitioner's residence. Petitioner was arrested and

charged with a number of stealing offenses, plus drug possession

and unlawful gun possession. When he was sentenced by the federal

district court under the ACCA, these state charges were still
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pending.

Petitioner has brought a motion under 28 U.S.C. § 2255 to

vacate the sentence, arguing that his counsel provided him

ineffective assistance by not objecting to the use of his

conviction for eluding police as a violent-crime predicate under

the ACCA. At the outset, we note that the state of the law at the

time of Petitioner's sentencing gave scant indication that such an

objection was likely to succeed. There was little case law, and

the two opinions directly on point both went against Petitioner's

position. United States v. Howze, 343 F.3d 919 (7th Cir. 2003);

United States v. James, 337 F.3d 387 (4th Cir. 2003). Then, just

over three months before Petitioner's sentencing, this Court held

that a prisoner's escape from custody, made by simply walking away

from a halfway house, qualified as a violent crime for purposes of

sentencing a defendant as a career offender under federal law.

United States v. Winn, 364 F.3d 7 (1st Cir. 2004).

In Winn, we endorsed the broad proposition that any

'escape scenario' was like a 'powder keg,' ready to explode into

violence when officers attempted to recapture the escapee. Id. at

11-12. The reasoning set forth in Winn concerning escape offenses

extends easily to evasive driving offenses. It is thus far from

clear that defense counsel would dip below the bench mark for

effective advocacy by failing to raise an objection to the use of

Petitioner's evasive driving conviction as an ACCA sentencing
See Shepard v. United States, 125 S.Ct. 1254, 1259 1

(2005)(applying "categorical criterion" to define violent offenses

under the ACCA); Taylor v. United States, 495 U.S. 575, 600

(1989)(same).

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predicate, even if the objection would later be determined to have

merit. See, e.g., Korhahrens v. Evatt, 66 F.3d 1350, 1360 (4th

Cir. 1995)("the case law is clear that an attorney's assistance is

not rendered ineffective because he failed to anticipate a new rule

of law")(citing cases). Advocating changes in recent precedent may

occasionally be required of competent counsel, but it would take

unusual circumstances.

In any event, the sentencing issue raised by Petitioner

is a recurring one, but one that this Circuit has not yet

addressed. We think that the merits of the Petitioner's argument

about his ACCA sentence, underlying his claim of ineffective

assistance, is the most appropriate basis for resolving this

matter. 

Recently, Petitioner's contentions concerning the use of

convictions for evasive driving as ACCA predicates have been raised

by other defendants before federal courts across the country. A

consensus has emerged that evasive driving offenses, like prison

escapes, constitute a category of 'violent' crime within the 1

meaning of the ACCA's provision for "conduct that presents a

serious potential risk of physical injury to another." 18 U.S.C.

§ 924(e)(2)(B)(ii). See United States v. Howze, 343 F.3d 919 (7th
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Cir. 2003)(analogizing between escapes from custody and flights to

avoid arrest in treating defendant's violation of Wisconsin statute

as ACCA predicate); United States v. James, 337 F.3d 387 (4th Cir.

2003)(reasoning that disobedience of police officer's signal to

stop in violation of South Carolina statute "poses the threat of

direct confrontation between the police officer and the occupants

of the vehicle"); United States v. Martin, 378 F.3d 578 (6th Cir.

2004)(stating, with respect to violation of Michigan statute, that

"by making a deliberate choice to disobey a police officer, the

motorist provokes an inevitable, escalated confrontation with the

officer."); United States v. Kendrick, 423 F.3d 803 (8th Cir.

2005)(stating, with respect to violation of Oregon statute, that

"the conduct associated with the commission of felony fleeing calls

to mind the risks associated with escape and automobile theft").

See also United States v. Rosas, 410 F.3d 332 (7th Cir.

2005)(following Howze as controlling in categorizing the Wisconsin

statute); United States v. Albritton, 135 Fed.Appx. 239 (11th Cir.

June 10, 2005)(unpublished decision concerning Florida's

'aggravated fleeing and eluding' statute)(Westlaw); United States

v. Howard, Nos. 04-4099, 04-4172, 2005 WL 2471000 (6th Cir. Oct. 6,

2005)(unpublished opinion treating Martin case as controlling

categorization of Ohio's evasive driving statute); United States v.

Clark, Nos. Civ. 05-3280-SAC, CR 99-4007601-SAC, 2005 WL 1925646

(D. Kan. Aug. 10, 2005)(as a matter of first impression within the
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10th Circuit, adopting the reasoning of the Howze case in

categorizing the Kansas evasive driving statute).

We recognize that the Ninth Circuit has determined that

violations of Washington state's superceded evasive driving law

were not categorically violent within the meaning of the ACCA,

because that statute criminalized mere risk to property, even

without threat to persons. United States v. Kelly, 422 F.3d 889

(2005)("the question is whether all conduct -- including the most

innocent conduct -- prohibited by the state statute qualifies as a

'violent felony'"); United States v. Ogle, No. 04-30328, 2005 WL

1950882 (9th Cir. Aug. 16, 2005). The Maine statute under which

the Petitioner was convicted, however, does not address

recklessness towards property, so these two Ninth Circuit cases are

distinguishable even if we were otherwise disposed to follow these

decisions.

The use of Petitioner's conviction for eluding police as

an ACCA predicate comports with the sound reasoning of the

majority-view cases cited above. The statute under which

Petitioner was convicted provided that

Whoever, after being requested or signaled to

stop, attempts to elude a law enforcement

officer by driving a vehicle at a reckless

rate of speed which results in a high-speed

chase between the operator's vehicle and any

law enforcement vehicle using a blue light and

siren is guilty [of a felony-level crime].

29 Maine Revised Statutes § 2501-A(3)(since superseded). We agree
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with the view that high-speed car chases pose a grave threat of

death and injury by collision, as well as escalated confrontations

between suspects and police. Such a category of crime manifestly

"involves conduct that presents a serious potential risk of

physical injury to another" within the meaning of the ACCA. See 18

U.S.C. § 924(e)(2)(B)(ii).

We hold that Petitioner's conviction for eluding police

is a proper violent-crime predicate under the ACCA. Since we

reject the Petitioner's contention that his evasive-driving

conviction was not a valid ACCA sentencing predicate, it follows

that his claim of ineffective assistance based on his defense

counsel's failure to raise the contention presents no substantial

issue for appeal.

Petitioner Chris Powell's request for a certificate of

appealability is denied.