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Rogers v. United States

United States District Court, E.D. Tennessee, Knoxville

November 21, 2016

DOUG ROGERS, Petitioner,



         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 66, 68].[1] The United States responded in opposition on August 15, 2016 [Doc. 70]. Petitioner did not reply and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. For the reasons discussed below, Petitioner's § 2255 motion [Docs. 66, 68] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2002, Petitioner entered a pharmacy, pointed a gun at a pharmacy employee, and demanded narcotics [Presentence Investigation Report (PSR) ¶ 10]. Petitioner subsequently pled guilty to armed robbery of a pharmacy, in violation of 18 U.S.C. § 2118(a) and (c)(1); using, carrying, and brandishing a firearm during and in relation to that crime of violence, in violation of 18 U.S.C. § 924(c); and possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) [Id. ¶¶ 1-5]. Based on Tennessee convictions for two aggravated burglaries [Id. ¶¶ 40-41], one aggravated robbery [Id. ¶ 43], and three robberies [Id. ¶¶ 46, 50-51], the United States Probation Office deemed Petitioner to be an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and career offender under Section 4B1.1 of the United States Sentencing Guidelines [Id. ¶¶ 33, 34]. As a result of these designations, Petitioner received a Guidelines range of 262 to 327 months' incarceration with a fifteen year statutory mandatory minimum sentence [Id. ¶ 78, 79]. This Court sentenced Petitioner to an aggregate 300-month term of imprisonment-concurrent 216-month terms for the pharmacy robbery and § 924(g)(1) offenses and a consecutive 84-month term for the § 924(c) offense [Doc. 55].

         Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence on September 21, 2007 [Doc. 64]. Petitioner did not seek a writ of certiorari from the Supreme Court, meaning his conviction became final for purposes of § 2255(f)(1) on December 20, 2007. See Clay v. United States, 537 U.S. 522, 525 (2003) (explaining that conviction affirmed on appeal becomes final when the ninety-day period for seeking a writ of certiorari expires).

         Eight-and-a-half years later-on June 22, 2016-Petitioner filed the instant petition seeking relief in light of Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual provision of the ACCA was unconstitutionally vague [Docs. 66, 67].


         Section 2255(f) places a one-year statute of limitations on all petitions for collateral relief under § 2255 running from either: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). Supreme Court precedent makes clear that Johnson's invalidation of the ACCA residual clause amounted to a new rule made retroactively applicable on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1265 (U.S. 2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers § 2255(h)(2)'s requirement for certification of a second or successive petition). Petitioner submitted the instant petition within subsection (f)(3)'s window.


         The relief authorized by 28 U.S.C. § 2255 “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         IV. ANALYSIS

         Petitioner argues the Johnson decision removed an undisclosed number of his prior conviction from the definition of “violent felony” under § 924(e)(2)(B) and “crime of violence” under Section 4B1.2(a), thereby precluding his continued categorization as an armed career criminal and career offender [Docs. 66, 67]. Petitioner also seeks vacatur of his § 924(c)(1)(A) conviction on the basis that the Johnson decision removed the pharmacy robbery offense from the definition of “crime of violence” in § 924(c)(3)(B) [Doc. 66].

         A. Validity of Petitioner's ACCA and Career Offender Designations

         The ACCA mandates a 15-year sentence for any felon who unlawfully possesses a firearm after having sustained three prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The statute defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “use-of-physical-force clause”); (2) “is burglary, arson, or extortion, involves the use of explosives” (the “enumerated-offense clause”); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the “residual clause”). 18 U.S.C. § 924(e)(2)(B). It was this third clause-the residual clause-that the Supreme Court deemed unconstitutional in Johnson. 135 S.Ct. at 2563. The Court went on to make ...

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