United States District Court, E.D. Tennessee, Knoxville
ERRICK E. GILMORE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Docs. 76]. He requests 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 [Id.].l
The United States responded in opposition on December 2, 2016
[Doc. 79]. 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.
December 31, 2008, Petitioner and an accomplice went through
the drive-thru of a Burger King, pointed a shot-gun at the
drive-thru employee, demanded cash, and then fled once they
obtained the money [Doc. 51 ¶ 4]. He was subsequently
caught and pled guilty to committing Hobbs Act robbery, in
violation of 18 U.S.C. § 1951; using, carrying, and
brandishing a firearm during and in relation to that robbery,
in violation of 18 U.S.C. § 924(c); and possessing a
firearm as a felon, in violation of 18 U.S.C. §
922(g)(1) [Id. ¶ 1]. In his plea agreement,
Petitioner “knowingly and voluntarily waive[d] the
right to file any motions or pleadings pursuant to 28 U.S.C.
§ 2255, ” with the exception of petitions raising
“claims of ineffective assistance of counsel or
prosecutorial misconduct” [Id. ¶ 10(b)].
on prior Tennessee convictions for Class D burglary
[Presentence Investigation Report (PSR) ¶ 48; Docs.
79-1, 79-2], aggravated burglary [PSR ¶ 50; Docs. 79-3,
79-4], aggravated assault [PSR ¶ 52; Docs. 79-5, 79-6],
and possession of cocaine for resale [PSR ¶ 55; Docs.
79-7], 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 an aggregate sentence of
264 months' incarceration-concurrent 180-month terms for
the Hobbs Act robbery and gun offense followed by a
consecutive 84-month term for the § 924(c) offense-and
five years of supervised release on June 6, 2011 [Doc. 69].
No direct appeal was taken and Petitioner's conviction
became final for purposes of § 2255(f)(1) on June 20,
2011, at expiration of time to appeal. See
Sanchez-Castellano v. United States, 358 F.3d 424, 428
(6th Cir. 2004) (explaining that an unappealed judgment of
conviction becomes final when the fourteen-day period for
filing a direct appeal has elapsed).
the Court is a collateral challenge to Petitioner's
sentence based on the Johnson decision [Doc. 76].
While Petitioner initially filed the challenge with the Sixth
Circuit, it was transferred to this Court on October 28, 2016
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).
petition asserts a single ground, arguing the
Johnson decision removed his convictions aggravated
burglary, aggravated assault, and possession of cocaine
convictions from § 924(e)(2)(B)'s definition of
violent felony and that, without those convictions,
Petitioner no longer qualifies for ACCA enhancement [Doc.
76]. The United States opposes relief based on the fact that
at least three prior convictions qualify as predicates
without the residual clause [Doc. 79].
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 a defendant's
prior serious drug offenses as an independent form of ACCA
predicate conviction. 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
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) (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 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. at 2281.
initial matter, the Court notes that two of the three
convictions designated as predicate offenses supporting ACCA
enhancement were Tennessee convictions for Class D burglary
and possession of cocaine. Binding Sixth Circuit precedent
makes clear that both offenses remain predicates after the
Johnson decision; Class D 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 possession of cocaine as a serious
drug offense, under the use-of-physical-force clause, see
United States v. Jenkins, 613 F. App'x 754, 755
(10th Cir. 2015) (deeming ...