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Rudd v. United States

United States District Court, E.D. Tennessee

January 19, 2017

JEFFREY RAY RUDD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 28].[1] The United States responded in opposition on August 18, 2016 [Doc. 33]; Petitioner replied in turn [Doc. 34]. For the reasons below, Petitioner's § 2255 motion [Doc. 28] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2009, Petitioner pled guilty to and was subsequently convicted of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g) [Docs. 18, 19]. He faced a statutory penalty of up to ten years' imprisonment as a result of the offense. 18 U.S.C. § 924(a)(2). Based on a prior Tennessee conviction for aggravated robbery and prior federal conviction for aiding and abetting Hobbs Act robbery, the United States Probation Office assigned Petitioner an enhanced based offense level under Section 2K2.1 of the United States Sentencing Guidelines [Presentence Investigation Report (PSR) ¶¶ 15, 38, 40].[2] A two-level enhancement for possessing at least three firearms [Id. ¶ 16], a two-level enhancement for possessing stolen firearms [Id. ¶ 17], a four-level enhancement for possessing the firearm in connection with an aggravated burglary [Id. ¶ 18], and a three-level reduction for acceptance of responsibility [Id. ¶24], resulted in a total offense level of twenty-nine and Guideline range of 121 to 151 months' incarceration when combined with Petitioner's criminal history category of IV [Id. ¶ 68]. On April 15, 2010, this Court sentenced Petitioner to 120 months' imprisonment [Doc. 25]. No appeal was taken.

         The United States Supreme Court decided Johnson v. United States-invalidating the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)-on June 26, 2015. 135 S.Ct. 2551 (2015). Petitioner filed the instant petition for collateral relief on June 16, 2016 [Doc. 28 (challenging the decision to enhance his base offense level)].

         II. TIMELINESS OF PETITIONER'S CLAIMS

         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.

         III. STANDARD OF REVIEW

         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).

         IV. ANALYSIS

         Petitioner articulates a single ground for relief, arguing that the Johnson decision removed his conviction for aiding and abetting Hobbs Act robbery from Section 4B1.2's definition of “crime of violence” and that, without that conviction, he no longer has the predicate offenses required for enhancement under Section 2K2.1(a)(2) [Doc. 28].

         The 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.

         Section 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 two prior convictions for either a “crime of violence” or “controlled substance offense, ” the base offense level increases to twenty-four. U.S. Sentencing Manual § 2K2.1(a)(2). “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 identical manner as “violent felony” under the ACCA. See U.S. Sentencing Manual §4B1.2(a) (adopting identical use-of-force and residual clauses and similar enumerated-offense clause).

         Petitioner does not dispute that his prior Tennessee conviction for aggravated robbery qualifies as a predicate crime of violence under the Guidelines use-of-physical force clause.[3]As such, the validity of Petitioner sentence depends on whether his federal conviction for aiding and abetting Hobbs Act robbery remains a “crime[] of violence” under one of the unaffected provisions of Section 4B1.2(a). See e.g., United States v. Ozier, 796 F.3d 597, 604 (6th Cir. 2015) (denying petition where conviction qualified as a predicate offense 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 an offense so qualifies, the Court must first identify the precise crime of conviction by employing a “categorical approach, ” ...


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