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Smith v. United States

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

December 16, 2016

KIVETTE SMITH, 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 [Doc. 761]. The petition relies on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Clause (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.]. This Court appointed Federal Defender Services of Eastern Tennessee (FDSET) for the limited purpose of reviewing the case to determine whether or not Petitioner is eligible for Johnson-based collateral relief on February 11, 2016. E.D. Tenn. SO-16-02 (Feb. 11, 2016). Consistent with that appointment, FDSET filed a supplement in support for Petitioner's requested vacatur [Doc. 769]. The United States responded in opposition [Doc. 770]; Petitioner, through counsel, replied in turn [Doc. 772]. Also before this Court is a request to defer ruling pending full briefing that the United States filed prior to receipt of the FDSET supplement [Doc. 766]. For the reasons that follow, the United States's request for deferral will be DENIED as moot and Petitioner's § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2004, Petitioner pled guilty to conspiring to distribute at least fifty grams of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) [Doc. 129]. He faced a statutory penalty of ten years up to life imprisonment for the offense [Presentence Investigation Report (PSR) ¶ 52]. Based on prior North Carolina convictions for common-law robbery [Id. ¶ 35], and robbery with a dangerous weapon [Id. ¶ 37], the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with an advisory guideline range of 262 to 327 months' imprisonment [Id. ¶¶ 27, 53]. In accordance with that designation, this Court sentenced Petitioner to 262 months' imprisonment followed by five years' supervised release on February 4, 2005 [Doc. 378].

         Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence on October 29, 2007. United States v. Smith, 252 F. App'x 20, 23 (6th Cir. 2007). Petitioner did not seek a writ of certiorari from the Supreme Court and his conviction became final for purposes of § 2255(f)(1) on January 17, 2008, at expiration of time to seek the same. See Clay v. United States, 537 U.S. 522, 525 (2003) (explaining that a conviction affirmed on appeal becomes final when the ninety-day period for seeking a writ of certiorari expires). More than one year later-on April 13, 2009-Petitioner filed an initial motion for collateral relief under § 2255 [Doc. 566]. This Court dismissed that motion as untimely on May 4, 2009 [Doc. 569].

         On June 25, 2016, the Supreme Court released the Johnson decision; Petitioner filed the instant successive petition for collateral relief less than one year later-on May 24, 2016 [Doc. 761 (suggesting North Carolina common law robbery no longer qualifies as a crime of violence under Section 4B1.1 and that without the conviction he cannot be categorized as a career offender)]. The Sixth Circuit recently granted leave to consider the petition [Doc. 760].


         In addition to the petition, this Court is also in possession of the United States's request that the Court defer ruling on the petition until the parties have had a full opportunity to brief the issues [Doc. 766]. Before this Court could rule on that motion, FDSET field a supplement in support of Petitioner's pro se petition [Doc. 769], the United States responded to that supplement [Doc. 770] and FDSET replied [Doc. 772]. Because deferral is no longer necessary, the United States's request for the same [Doc. 776] will be DENIED as moot.


         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). It is yet to be seen whether the same is true of the “new rule” that results from application of Johnson's reasoning in the guideline context. See Pawlak v. United States, 822 F.3d 902, 911 (6th Cir. 2016) (holding that Johnson's vagueness analysis applies equally to the Guidelines and, as a result, that the parallel residual provision contained in Section 4B1.2 was void for vagueness); but see In re Embry, No. 16-5447, 2016 WL 4056056, at *1 (6th Cir. July 29, 2016) (recognizing that “it is not clear whether to treat Pawlak as a new rule that the Supreme Court has not yet made retroactive [to cases on collateral review] or as a rule dictated by Johnson that the Supreme Court has made retroactive”). The Court finds that it need not resolve the issue here, however, because the Johnson decision has no impact on Petitioner's case.


         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).

         V. ANALYSIS

         The ACCA mandates a fifteen-year minimum 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 ...

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