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Walls v. United States

United States District Court, W.D. Tennessee, Western Division

December 5, 2016

DORIAN WALLS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 DENYING CERTIFICATE OF APPEALABILITY CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (the “§ 2255 Motion”) filed by Petitioner Dorian Walls (“Walls”), Bureau of Prisons register number 25307-076, an inmate at Forest City-Medium FCI in Forest City, Arkansas (§ 2255 Motion, ECF No. 1). For the reasons stated below, Walls's § 2255 Motion for Johnson relief is DENIED.

         BACKGROUND

         On June 26, 2012, a federal grand jury sitting in the Western District of Tennessee returned an indictment against Walls charging him with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The parties entered into a plea agreement, and the Court accepted Walls's change of plea at a hearing on November 16, 2012. The Court sentenced Walls on March 7, 2013, to a term of incarceration of 120 months to be followed by three years' supervised release. (See Judgment, ECF No. 40.) Walls did not take a direct appeal.

         Walls filed his § 2255 Motion on February 24, 2016, arguing that he was entitled to a reduced sentence under Johnson v. United States, 135 S.Ct. 2551 (2015). Pursuant to Administrative Order 2016-21, the United States Probation Office conducted an initial review of Walls's claim under Johnson v. United States. On November 17, 2016, the probation officer submitted a memorandum to the Court, recommending that Walls was not entitled to any relief under Johnson.

         ANALYSIS

         I. Claim for Johnson Relief

         The Court holds that Walls is not entitled to relief pursuant to Johnson v. United States, 135 S.Ct. 2251 (2015). The Supreme Court in Johnson explained that the United States Code makes it a crime against the United States for certain classes of persons, such as convicted felons, to possess firearms and provides for a punishment of up to ten years' imprisonment.[1] The Armed Career Criminal Act increases the penalty for unlawful possession of a firearm where the offender has “three or more earlier convictions for a ‘serious drug offense' or a ‘violent felony'” and sets a minimum term of imprisonment of 15 years and a maximum of life.[2] The ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”[3] The phrase “or otherwise involves conduct that presents a serious potential risk of physical injury to another” has come to be known as the ACCA's residual clause.

         In Johnson, the Supreme Court held that the residual clause was unconstitutionally void for vagueness.[4] Johnson left the ACCA's use-of-force clause and enumerated offenses clause undisturbed. In Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court subsequently held that, as applied to ACCA cases, Johnson is a new substantive rule of constitutional law that has been made retroactive to cases on collateral review, and therefore, defendants can bring initial or successive 28 U.S.C. § 2255 petitions challenging their sentences enhanced under the ACCA's residual clause.

         The Court sentenced Walls as an armed career criminal based on three prior convictions under Tennessee law: (1) Voluntary Manslaughter (committed in 1999); (2) Aggravated Robbery (also committed in 1998); (3) Unlawful Possession of Cocaine with Intent to Sell, a Class B felony (committed in 2007). However, the Supreme Court's intervening decision in Johnson had no effect on Walls's sentence as an armed career criminal because none of Walls's prior felony offenses implicate the ACCA's residual clause. First, the Sixth Circuit has recently held that voluntary manslaughter under Georgia law falls under the ACCA's use-of-force clause because a crime that causes the death of another “necessarily requires proof that the individual used ‘force capable of causing physical pain or injury.'”[5] Georgia's statute makes it a crime to “cause[] the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.”[6] In this case Walls was previously convicted of voluntary manslaughter under Tennessee law. Much like the Georgia statute at issue in Jackson, Tennessee's statute defines voluntary manslaughter as “the intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.”[7] The Court finds the Sixth Circuit's reasoning in Jackson persuasive and holds that Walls's prior Voluntary Manslaughter conviction continues to qualify as a violent felony under the ACCA's use-of-force clause.

         Second, Walls's Aggravated Robbery conviction qualifies as a violent felony under the ACCA's use-of-force clause. Walls's Aggravated Robbery conviction was based on Tenn. Code Ann. § 39-13-402, which defines certain aggravating factors and applies them to Tennessee's robbery statute, Tenn. Code Ann. § 39-13-401. In United States v. Mitchell, 743 F.3d 1054 (6th Cir. 2014), the Sixth Circuit held that robbery under Tenn. Code Ann. § 39-13-401 was categorically a “violent felony” for purposes of the ACCA, specifically under the use-of-force clause.[8] And in United States v. Priddy, 808 F.3d 676 (6th Cir. 2015), a case decided after the Supreme Court's decision in Johnson, the Sixth Circuit held that Johnson did nothing to alter its previous holding in Mitchell.[9] It follows that Aggravated Burglary also constitutes a “violent felony” under the ACCA's use-of-force clause. Therefore, Walls's prior Aggravated Burglary conviction continues to be a violent felony under the ACCA's use-of-force clause.

         Finally, Walls's conviction for Unlawful Possession of Cocaine with Intent to Sell qualifies as a serious drug offense for purposes of the ACCA. The ACCA defines a “serious drug offense” to include an “offense under State law, involving . . . possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.”[10] Here Walls was convicted of a Class B felony under Tenn. Code Ann. § 39-17-417, which made it a crime “for a defendant to knowingly [p]ossess a controlled substance with intent to manufacture, deliver or sell the controlled substance”[11] and classified a violation of the statute involving 0.5 grams or more of any substance containing cocaine as a Class B felony.[12] Under the Tennessee Criminal Sentencing Reform Act of 1989, a Class B felony carries an overall maximum term of imprisonment of 30 years and even under Range I, the lowest range for offenders with the fewest number of prior convictions, a maximum term of 12 years' imprisonment. The Court concludes that Walls's 2007 drug offense satisfies the ACCA's definition of a “serious drug offense” and qualifies as an ACCA predicate conviction. Therefore, Joy's prior drug offense does not implicate the ACCA's residual clause.

         Having determined that all three of Walls's prior felony convictions continue to be “violent felonies” for ACCA purposes and do not implicate the ACCA's residual clause, the Court holds that Walls is not entitled to relief under Johnson. Therefore, Walls's §2255 Motion for Johnson relief must be DENIED.

         II. ...


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