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Young v. United States

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

December 16, 2016

CARLOS YOUNG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 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 Carlos Young (“Young”), Bureau of Prisons register number 22371-076, an inmate at FCI Yazoo City-Medium in Yazoo City, Mississippi (§ 2255 Motion, ECF No. 1). For the reasons stated below, Young's § 2255 Motion for Johnson relief is DENIED.

         BACKGROUND

         On November 18, 2008, a federal grand jury sitting in the Western District of Tennessee returned an indictment against Young charging him with one count of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g). The parties entered into a plea agreement, and the Court accepted Young's change of plea at a hearing on July 2, 2009. The Court sentenced Young on November 16, 2009, to a term of incarceration of 180 months to be followed by three years' supervised release. (See Judgment, ECF No. 41.) Young appealed, and the United States Court of Appeals for the Sixth Circuit affirmed the Court's judgment on August 19, 2011.

         Young filed his § 2255 Motion on September 2, 2015, arguing that he was entitled to a reduced sentence under Johnson v. United States, 135 S.Ct. 2551 (2015). Young has also filed a Motion to Supplement (ECF No. 5), in which Young cites subsequent decisions of the Supreme Court and the Court of Appeals on the retroactive application of Johnson.[1] Young also argues that his prior convictions for Aggravated Assault and Attempted Second Degree Murder are not violent felonies for purposes of the Armed Career Criminal Act (“ACCA”). Pursuant to Administrative Order 2016-21, the United States Probation Office conducted an initial review of Young's claim under Johnson v. United States. On December 14, 2016, the probation officer submitted a memorandum to the Court, recommending that Young was not entitled to any relief under Johnson.

         STANDARD OF REVIEW

         Young seeks habeas relief in this case pursuant to 28 U.S.C. § 2255(a). The statute reads as follows:

[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.”[2] A § 2255 motion is not a substitute for a direct appeal.[3] “[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings.”[4] “Defendants must assert their claims in the ordinary course of trial and direct appeal.”[5] The rule, however, is not absolute:

If claims have been forfeited by virtue of ineffective assistance of counsel, then relief under § 2255 would be available subject to the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In those rare instances where the defaulted claim is of an error not ordinarily cognizable or constitutional error, but the error is committed in a context that is so positively outrageous as to indicate a “complete miscarriage of justice, ” it seems to us that what is really being asserted is a violation of due process.[6]

         Procedural default bars even constitutional claims that a defendant could have raised on direct appeal, but did not, unless the defendant demonstrates cause and prejudice sufficient to excuse his failure to raise the issues previously.[7] Alternatively, a defendant may obtain review of a procedurally defaulted claim by demonstrating his “actual innocence.”[8]

         Dismissal of a § 2255 motion is mandatory if the motion, exhibits, and the record of prior proceedings show that the petitioner is not entitled to relief.[9] If the habeas court does not dismiss the motion, the court must order the United States to file its “answer, motion, or other response within a fixed time, or take other action the judge may order.”[10] The petitioner is then entitled to reply to the government's response.[11] The habeas court may also direct the parties to provide additional information relating to the motion.[12] The petitioner has the burden of proving that he is entitled to relief by a preponderance of the evidence.[13]

         ANALYSIS

         The Court holds that Young 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.[14]The ACCA 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.[15] 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.”[16] 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.[17] 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 Young as an armed career criminal based on three prior convictions under Tennessee law: (1) Aggravated Robbery (committed in 2000); (2) Aggravated Assault (also committed in 2000); and (3) Criminal Attempt: Second Degree Murder (committed in 2001). However, the Court holds that the Supreme Court's intervening decision in Johnson had no effect on Young's sentence as an armed career criminal because none of Young's prior felony offenses implicate the ACCA's residual clause. Young challenges only the Court's use of his Aggravated Assault and Attempted Second Degree Murder convictions as qualifying violent felonies. The Court will analyze each of Young's qualifying convictions in turn.

         I. Aggravated Robbery

         First, Young's Aggravated Robbery conviction qualifies as a violent felony under the ACCA's use-of-force clause. Jackson'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.[18] 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.[19] It follows that Aggravated Burglary constitutes a “violent felony” under the ACCA's use-of-force clause. Therefore, Jackson's prior Aggravated Robbery conviction continues to qualify as a violent felony under the ACCA's use-of-force clause.

         II. Aggravated Assault

         Second, Young's prior Aggravated Assault conviction is also a violent felony under the ACCA's use-of-force clause. Assault is not listed in the ACCA's enumerated offenses clause, and so it will only count as a “violent felony” if it falls under the ACCA's use-of-force clause. The Court must decide then whether Aggravated Assault under Tennessee law “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Supreme Court has defined “physical force” as “violent force-that is, force capable of causing physical pain or injury to another person.”[20] If a person can be guilty under a statute for conduct not involving the use, attempted use, or threatened use of physical force, then the person's offense is not a qualifying predicate felony under the “use-of-physical-force” clause.[21]

         The Court's analysis of whether an offense is a “violent felony” generally begins with a close examination of the statute itself to determine if the offense is categorically a violent felony. Under the Supreme Court's categorical approach, courts should look “only to the fact of conviction and the statutory definition-not the facts underlying the offense-to determine whether that definition supports a conclusion that the conviction was for a crime of violence.”[22]But where the statute is divisible and it is possible to violate the statute “in a way that would constitute a [violent felony] and in a way that would not, ”[23] courts then apply a modified categorical approach. The Court turns to a “limited class of documents to determine which alternative element formed the basis of the defendant's prior conviction.”[24] Where as here a defendant pleaded guilty to the underlying charge, the so-called Shepherd documents “may include the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”[25] The Sixth Circuit has held that Tennessee's aggravated assault statute, Tenn. Code Ann. § 39-13-102, is divisible.[26]Therefore, the Court will proceed to analyze the issue under the modified categorical approach.

         In order to determine whether Young's offense was a “violent felony” for ACCA purposes, the Court must now look to the so-called Shepherd documents, meaning “the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”[27] The May 8, 2001 indictment charged in count 2 that Young “did unlawfully and knowingly commit an assault on Terry Butler and by use of a deadly weapon, to wit: a firearm, cause bodily injury to the said Terry Butler, in violation of T.C.A. 39-13-102 . . . .”[28] The indictment did not allege which specific paragraph of the statute Young had violated, though it appears that Young was charged with violating Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii), which defines one kind of aggravated assault as “[i]ntentionally or knowingly commit[ting] an assault as defined in § 39-13-101, and the assault [i]nvolved the use or display of a deadly weapon . . . .”[29] The record further shows that Young pleaded guilty to count 2 as part of a negotiated plea agreement with the state and was sentenced to four years. The Sixth Circuit has specifically held that assault committed with a deadly weapon under Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii) constitutes a violent felony under the ACCA's use-of-force clause.[30] Therefore, the Court finds then that Young's Aggravated Assault conviction was based on his use of a deadly weapon.

         Young argues in his Motion to Supplement (ECF No. 5) that the Supreme Court's recent decision in Mathis v. United States, 136 S.Ct. 2243 (2016) altered the modified categorical approach in such a way that Young's Aggravated Assault conviction can no longer satisfy the ACCA's definition of a violent felony. Mathis, however, does not apply in Young's case. The issue presented in Mathis was how the categorical approach should apply to the generic felonies, burglary, arson, and extortion, listed in the enumerated offenses clause of the ACCA, and “whether ACCA's general rule-that a defendant's crime of conviction can count as a predicate only if its elements match those of a generic offense-gives way when a statute happens to list various means by which a defendant can satisfy an element.”[31] The specific question in Mathis was whether the petitioner's prior burglary conviction and the elements of burglary under Iowa law satisfied the generic definition of burglary under the ACCA. The Supreme Court held that no exception applied and that Iowa's burglary statute did not satisfy the ACCA's generic definition of burglary.

         Mathis is instructive but does not control the outcome here. Unlike burglary, assault is not one of the ACCA's enumerated offenses, and Young's Aggravated Assault conviction qualifies as a violent felony under the ACCA's use-of-force clause. Young has not shown then why the Court should compare the elements of Aggravated Assault under Tennessee law to a generic definition of assault. And as previously noted, the Sixth Circuit has concluded that Tenn. Code Ann. § 39-13-102, Tennessee's aggravated assault statute, is divisible and appropriate for the modified categorical approach. Therefore, the Court concludes that Young's Aggravated Assault conviction constitutes a violent felony under the ACCA's use-of-force clause.

         III. Criminal Attempt: Second Degree Murder

         Finally, Young's prior Criminal Attempt: Second Degree Murder conviction is a violent felony under the ACCA's use-of-force clause. As an initial matter, the fact that Young's prior offense was an attempt has no bearing on the Court's analysis. The use-of-force clause itself is based on the “use, attempted use, or threatened use of physical force against the person of another.”[32] Moreover, just as with assault, murder is not listed in the ACCA's enumerated offenses clause, and so the Court must decide whether Second Degree Murder under Tennessee law “has as an element the ...


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