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 [Doc.
He bases his request for relief 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 [Id.]. The United States
filed a response in opposition on June 21, 2016 [Doc. 23];
Petitioner replied in turn on July 6, 2016 [Doc. 24]. For the
reasons that follow, Petitioner's § 2255 motion
[Doc. 21] will be DENIED and
DISMISSED WITH PREJUDICE.
2012, Petitioner pled guilty to, and was subsequently
convicted of, possessing a firearm as a felon, in violation
of 18 U.S.C. § 922(g)(1), which subjected him to a
statutory penalty range of up to ten years' imprisonment
under 18 U.S.C. § 924(a)(2) [Presentence Investigation
Report (PSR) ¶¶ 2, 52]. Based on two prior
convictions-one Illinois conviction for aggravated discharge
of a firearm and another conviction for unlawful delivery of
a controlled substance, the United States Probation Office
subjected Petitioner to an enhanced based offense level under
Section 2K2.1 of the United States Sentencing Guidelines
[Id. ¶ 15].After a two-level enhancement based on
the number of firearms he possessed, and a three-level
reduction for acceptance of responsibility, Petitioner's
total offense level was twenty-three [Id.
¶¶ 16, 22-24]. Given his criminal history category
of III, Petitioner was assigned an advisory Guideline range
of 57 to 71 months' imprisonment [Id.
¶¶ 33, 53]. The Court sentenced Petitioner to 63
months' imprisonment on April 17, 2013 [Doc. 19]. No
direct appeal was taken and Petitioner's conviction
became final for purposes of § 2255(f)(1) on May 1,
2013, at expiration of time to file an appeal. See
Sanchez-Castellano v. United States, 358 F.3d 424, 428
(6th Cir. 2004) (an unappealed judgment of conviction becomes
final when the fourteen-day period for filing a direct appeal
than three years later-on June 2, 2016-Petitioner filed the
instant petition challenging his sentence in light of the
Johnson decision [Doc. 21].
TIMELINESS OF PETITION
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.
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).
articulates as single ground for collateral relief: arguing
that his prior Illinois conviction for aggravated discharge
of a firearm no longer qualifies as a crime of violence after
the Johnson decision and that, without that
conviction, he no longer qualifies for the enhanced based
offense level under Section 2K2.1(a)(2) [Doc. 21].
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) (emphasis
added). The provision defines “serious drug
offense” as any “offense under State law,
involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance .
. . for which a maximum term of imprisonment of ten years or
more is prescribed by law.” 18 U.S.C. §
924(e)(2)(A)(ii). The Act goes on to define “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). Only the third portion of the above
definition-the residual clause-was held to be
unconstitutionally vague by the Supreme Court 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-the use-of-physical-force and
enumerated-offense clauses. Id.; United States
v. Priddy, 808 F.3d 676, 682-83 (6th Cir. 2015). Nor
does Johnson disrupt the use of prior drug offenses
as predicates. See, e.g., United States v.
Smith, No. 10-CR-20058, 2015 WL 5729114, at *9-13 (E.D.
Mich. Sept. 20, 2015) (noting that Johnson does not
affect a defendant's categorization as an armed career
criminal based on his or her prior serious drug offenses).
4B1.1 classifies a defendant as a career offender if (1) he
or she was at least eighteen years old at the time the
defendant committed the instant offense; (2) the instant
offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) he or she
has at least two prior felony convictions of either a crime
of violence or a controlled substance offense. U.S.
Sentencing Manual § 4B1.1(a). Only Petitioner's
satisfaction of the third prong-possession of two qualifying
predicate convictions-is disputed [Doc. 21].
substance offense” is defined as any offense
“punishable by imprisonment for a term exceeding one
year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance . . .
or the possession of controlled substance . . . with intent
to manufacture, import, export, distribute, or
dispense.” U.S. Sentencing Manual § 4B1.2(b).
“Crime of violence” is defined in an almost
identical manner as “violent felony” under the
ACCA. See ...