United States District Court, E.D. Tennessee
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
the Court is Petitioner's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 [Docs.
20]. On February 11, 2016, this Court appointed Federal
Defender Services of Eastern Tennessee (FDSET) to investigate
Petitioner's case to determine whether or not he was
entitled to collateral relief. E.D. Tenn. S.O. 16-02 (Feb.
11, 2016). FDSET filed a notice of conflict of interest and
this Court appointed substitute CJA counsel [Docs. 21, 22].
Consistent with that appointment, counsel filed a supplement
requesting collateral relief based 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 Act (“ACCA”), 18 U.S.C. § 924(e),
was unconstitutionally vague [Doc. 23]. The United States
responded in opposition on August 11, 2016 [Doc. 26].
Petitioner did not reply and the time for doing so has now
has lapsed. E.D. Tenn. L.R. 7.1, 7.2. For the reasons below,
Petitioner's § 2255 motion will be DENIED and
DISMISSED WITH PREJUDICE.
2011, law enforcement officers caught Petitioner selling
stolen firearms out of a stolen van [Presentence
Investigation Report (PSR) ¶¶ 7-8]. He subsequently
pled guilty to possessing firearms as a felon, in violation
of 18 U.SC. § 922(g)(1) [Id. ¶¶ 1-2].
Based on prior Tennessee convictions for burglary
[Presentence Investigation Report (PSR) ¶ 33], robbery
[Id. ¶ 35], and aggravated assault
[Id. ¶ 52], the United States Probation Office
deemed Petitioner to be an armed career criminal subject to
the ACCA's enhanced fifteen-year mandatory minimum
sentence. This Court agreed and sentenced Petitioner to 192
months' incarceration followed by five years'
supervised release on October 17, 2012 [Doc. 17]. No direct
appeal was taken.
less than two years later-on August 25, 2014, Petitioner
filed a pro se request for collateral relief based on
ineffective assistance of counsel [Doc. 20 (suggesting trial
counsel deviated from professional norms when he failed to
object to Petitioner's categorization as an armed career
criminal based on the Supreme Court's decision in
Descamps v. United States, 133 S.Ct. 2276 (2013))].
On June 24, 2016, substitute CJA counsel supplemented
Petitioner's pro se filing with a request for vacatur of
sentence in light of the Johnson decision [Doc. 23].
TIMELINESS OF PETITIONER'S CLAIMS
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). Counsel
submitted the supplement within subsection (f)(3)'s
STANDARD OF REVIEW
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).
bears the burden of demonstrating an error of constitutional
magnitude which had a substantial and injurious effect or
influence on the criminal proceedings, Reed v.
Farley, 512 U.S. 339, 353 (1994); Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993), and he likewise
bears the burden of articulating sufficient facts to state a
viable claim for relief under 28 U.S.C. § 2255. A §
2255 motion may be dismissed if it only makes vague
conclusory statements without substantiating allegations of
specific facts and thereby fails to state a claim cognizable
under § 2255. Green v. Wingo, 454 F.2d 52, 53
(6th Cir. 1972).
ACCA mandates a fifteen-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, [or] 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 clear, however, that its decision did “not call
into question . . . the remainder of the [ACCA's]
definition of violent felony, ” i.e., the
use-of-physical-force and enumerated-offense clauses.
Id. Nor did Johnson disturb the use of
prior serious drug offenses as predicates.
validity of Petitioner's sentence thus depends on whether
three or more of his prior convictions qualify as
“serious drug offenses” under § 924(e)(2)(A)
or, in the alternative, “violent felonies” under
one of the unaffected provisions of § 924(e)(2)(B).
See, e.g., United States v. Ozier, 796 F.3d
597, 604 (6th Cir. 2015) (explaining courts need not decide
what import, if any, Johnson has on the Sentencing
Guidelines' residual clause where the petitioner's
prior convictions qualify as predicate offenses independent
of the residual clause), overruled on other grounds by
Mathis v. United States, 136 S.Ct. 2243, 2251 n. 1
(2016). To determine whether a particular offense qualifies
as a violent felony under any of the prongs of the above
definition, courts must first identify the precise crime of
conviction. Descamps, 133 S.Ct. at 2285. They do so
by employing a “categorical approach, ” under
which they look “only to the statutory
definitions-elements-of a defendant's prior offense, and
not to the particular facts underlying [each individual]
conviction.” Id. at 2283. When the
conviction involves violation of a “divisible”
statute-one which comprises multiple, alternative versions of
the crime-courts resort to the “modified categorical
approach” under which they “consult a limited
class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis
of the defendant's prior conviction.” Id.
initial matter, the Court notes that two of the three
convictions designated as predicate offenses supporting ACCA
enhancement were Tennessee convictions for burglary and
robbery. Binding Sixth Circuit precedent makes clear that
both offenses remain predicates after the Johnson
decision; burglary under the enumerated-offense clause,
see United States v. Priddy, 808 F.3d 676, 685 (6th
Cir. 2015) (finding that post-1989 Tennessee Class D burglary
is categorically a violent felony under the ACCA's
enumerated offense clause),  and robbery under the
use-of-physical-force clause, see United States v.
Mitchell, 743 F.3d 1054, 1058-60 (6th Cir. 2014)