United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
J. CAMPBELL UNITED STATES DISTRICT JUDGE
before the Court are filings made by the Petitioner, pro
se, requesting relief under 28 U.S.C. § 2255
(Docket Nos. 38, 49); a Notice Regarding Supplemental Brief
On Applicability Of Johnson v. United States (Docket
No. 45), filed by counsel for the Petitioner; and the
Government's Response (Docket No. 46) in opposition.
reasons set forth herein, the Petitioner's request for
relief is DENIED.
Procedural and Factual Background
underlying criminal case, the Petitioner was convicted, after
a week-long trial, of certain firearms and drug trafficking
crimes. (Docket Nos. 860, 863 in Case No. 3:11-00194). As
part of its verdict, the jury found the drug conspiracy in
which the Petitioner participated involved 280 grams or more
of cocaine base, as well as a quantity of cocaine and
marijuana. (Docket No. 863 in Case No. 3:11-00194). Based on
that quantity of drugs, and the Petitioner's two prior
felony drug offenses, the applicable sentence imposed by 21
U.S.C. §§ 841(b)(1)(A) and 851 was a mandatory
minimum sentence of life imprisonment. (Docket Nos. 848,
1125, 1126, 1142, 1221, at 46-49 and 83, in Case No.
3:11-00194). In addition, the Petitioner's conviction of
possessing a firearm in furtherance of a drug trafficking
crime required a 60-month mandatory consecutive sentence,
under 18 U.S.C. §§ 924(c)(1)(A)(i) and (D)(ii).
(Docket Nos. 1125, 1126, 1142, 1221, at 46-49 and 83-84, in
Case No. 3:11-00194). Although the Petitioner qualified as a
Career Offender under the Sentencing Guidelines, the
statutory provisions cited above set the applicable sentence.
subsequent sentencing hearing, the Court imposed the
statutorily-required sentence of life plus 60 months of
imprisonment. (Docket Nos. 1125, 1126, 1221 in Case No.
3:11-00194). The Petitioner appealed, and the Sixth Circuit
affirmed the Petitioner's convictions. (Docket Nos. 1128,
1141, 1149, 1407, 1829 in Case No. 3:11-00194).
29, 2014, the Petitioner filed a Motion Under 28 U.S.C.
§ 2255 To Vacate, Set Aside Or Correct Sentence in this
case. (Docket No. 1). After briefing, the Court denied the
Petitioner's Motion and dismissed the case. (Docket Nos.
17, 18). The Petitioner appealed, but the Sixth Circuit
denied his request for a certificate of appealability, and
the Supreme Court denied the Petitioner's writ of
certiorari. (Docket Nos. 35, 37).
the pending filings, the Petitioner relies on 28 U.S.C.
§ 2255 to support his request that the Court apply
Johnson v. United States, 135 S.Ct. 2551 (2015), and
other authority, to reduce his sentence. Although not
addressed by the Government, the Court initially notes that
the Petitioner has not obtained permission from the Sixth
Circuit to file the pending request for relief. Under 28
U.S.C. §§ 2244(b)(3) and 2255(h), federal prisoners
seeking to file a second or successive motion attacking a
sentence under 28 U.S.C. § 2255 must request from the
court of appeals an order authorizing the district court to
entertain the second or successive request. 28 U.S.C. §
2244; In re: Sims, 111 F.3d 45, 47 (6th
Cir. 1997). Even if the Petitioner obtained such permission,
however, the Court finds his request for relief to be without
Johnson, the Supreme Court held that the so-called
“residual clause” of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally vague. The ACCA provides for a 15-year
mandatory minimum sentence for defendants convicted of
certain firearms offenses who have three previous convictions
for a “violent felony” or a “serious drug
offense.” 18 U.S.C. § 924(e)(1). The statute goes
on to define “violent felony” as follows, with
the residual clause set forth in italics:
(2) As used in this subsection-
* * *
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by ...