United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
JAMES D. TODD, District Judge.
Before the Court is a motion pursuant to 28 U.S.C. § 2255 filed pro se by the Movant, Paul Garnet Hill, Bureau of Prisons register number XXXXX-XXX, an inmate at the Federal Correctional Institution in Pollock, Louisiana. For the reasons stated below, the Court DENIES Movant's § 2255 motion.
On February 23, 2004, a federal grand jury returned a single-count indictment charging Hill, a convicted felon, with possessing a firearm that had been shipped in interstate commerce, in violation of 18 U.S.C. § 922(g). (No. 04-10026-JDT, ECF No. 1.) On June 10, 2004, Hill entered a plea of guilty to the sole count of the indictment. ( Id., ECF No. 18.) There was no written plea agreement. At a hearing on September 24, 2004, the Court sentenced Hill as an armed career criminal to a 188-month term of imprisonment, to be followed by a three-year period of supervised release. ( Id., ECF No. 26.) Judgment was entered on September 27, 2004. ( Id., ECF No. 28.)
The United States Court of Appeals for the Sixth Circuit affirmed the decision to sentence Hill under the ACCA but vacated his sentence and remanded for a new sentencing hearing in light of United States v. Booker, 543 U.S. 220 (2005). United States v. Hill, 440 F.3d 292 (6th Cir. 2006). On remand, a resentencing hearing was held on July 17, 2006, at which the Court reimposed the sentence of 188 months and three years of supervised release. (No. 04-10026, ECF No. 45.) An amended judgment was entered on July 19, 2006. ( Id., ECF No. 46.) Hill did not appeal.
On June 9, 2014, Movant filed his § 2255 motion, accompanied by a legal memorandum. (ECF Nos. 1 & 1-1.) The sole issue presented is whether the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013), precludes the use of Movant's Tennessee burglary convictions as predicate offenses under the ACCA. (ECF No. 1-1 at 3-11.)
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
"A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).
After a § 2255 motion is filed, it is reviewed by the Court and, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4(b), Rules Governing § 2255 Proceedings ("§ 2255 Rules"). "If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id. The movant is entitled to reply to the Government's response. Rule 5(d), § 2255 Rules.
"In reviewing a § 2255 motion in which a factual dispute arises, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims." Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (internal quotation marks omitted). "[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Id. (internal quotation marks omitted). Where the judge considering the § 2255 motion also presided over the criminal case, the judge may rely on his recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) ("[A] motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion...."). Movant has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
In his § 2255 motion, Hill argues that he is entitled to relief from his sentence as an armed career criminal in light of the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013). In Descamps, the Supreme Court held that the modified categorical approach cannot be used to determine the nature of a prior conviction under the ACCA "when the crime of which the defendant was convicted has a single, indivisible set of elements." Id. at 2282. Movant argues that his Tennessee burglary convictions were not properly counted as "crimes of violence." (ECF No. 1-1 at 3-11.)
Movant's § 2255 motion is facially time barred. Twenty-eight U.S.C. § 2255(f) provides:
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period ...