United States District Court, E.D. Tennessee, Knoxville
Jordan, 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.
The Petitioner 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 Act (ACCA),
18 U.S.C. § 924(e), was unconstitutionally vague
[Id.]. The United States responded in opposition on
July 5, 2016 [Doc. 35]; Petitioner replied in turn [Doc. 36].
For the reasons below, Petitioner's § 2255 motion
[Doc. 33] will be DENIED and DISMISSED WITH PREJUDICE.
2013, local police officers saw Petitioner, a convicted
felon, shooting a firearm [Presentence Investigation Report
(PSR) ¶ 4]. Petitioner later pled guilty to possessing a
firearm as a convicted 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) [Id. ¶¶ 2, 59]. Based on
a 1998 Tennessee conviction for attempted second-degree
murder, the United States Probation Office assigned
Petitioner an enhanced base offense level under Section 2K2.1
of the United States Sentencing Guidelines [Id.
¶¶ 22, 32]. After a four-level enhancement for
possessing the firearm in connection with another felony
offense and a three-level reduction for acceptance of
responsibility, Petitioner received a total offense level of
twenty-one [Id. ¶¶ 13, 19-21]. Given his
criminal history category of II, the United States Probation
Office assigned Petitioner an advisory Guidelines range was
41 to 51 months' imprisonment [Id. ¶¶
36, 60]. The Court sentenced Petitioner to 44 months'
imprisonment on April 29, 2014 [Doc. 29]. No direct appeal
was taken and his conviction became final for purposes of
§ 2255(f)(1) on May 13, 2014. 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 has elapsed).
United States Supreme Court issued the Johnson
decision on June 26, 2015. Petitioner filed the instant
petition less than one year later [Doc. 33 (challenging base
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). 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 issue need not be resolved
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).
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).
articulates a single ground for relief, arguing that the
Johnson decision removed second-degree murder from
Section 4B1.2's definition of “crime of
violence” and, without that offense, he lacks the
predicate offense required for application of an enhanced
base offense level.
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, 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.
2K2.1 sets a general base offense level of fourteen for
violating 18 U.S.C. § 922(g). U.S. Sentencing Manual
§ 2K2.1(a)(6). For offenders with one prior conviction
for either a “crime of violence” or
“controlled substance offense, ” the base offense
level increases to twenty. U.S. Sentencing Manual §
2K2.1(a)(4). “Controlled 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