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Vowell v. United States

United States District Court, E.D. Tennessee

January 30, 2017

RICHARD L. VOWELL, Petitioner,



         Before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 46].[1] Petitioner 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 to relief on December 1, 2016 [Doc. 49]; Petitioner replied in turn on December 30, 2016 [Doc. 50]. Included in the petition and reply to the United States' response is a suggestion that this Court defer ruling on the instant petition pending the Eleventh Circuit's decision in United States v. Antonio Heard, No. 15-10612-BB (11th Cir. 2016) [Doc. 46 p. 6; Doc. 50 pp. 2-3]. For the reasons that follow, Petitioner's request for deferral will be DENIED and § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 1999, Petitioner pled guilty to, and was subsequently convicted of, possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) [Docs. 40, 43]. At the time of sentencing, Petitioner had numerous prior convictions, including: a 1979 Tennessee conviction for second-degree burglary [Presentence Investigation Report (PSR) ¶ 24; Doc. 49-1]; a 1980 Tennessee conviction for armed robbery [PSR ¶ 25; Docs. 49-2, 49-3]; a 1983 Georgia conviction for burglary of a dwelling house [PSR ¶ 29; Docs. 49-4, 49-5]; and a 1998 Tennessee conviction for aggravated burglary [PSR ¶ 33; Docs. 49-6, 49-7]. Based on the latter three convictions, the United States Probation Office deemed Petitioner to be an armed career criminal subject to the ACCA's enhanced fifteen-year mandatory minimum sentence [PSR ¶¶ 17]. In accordance with that designation, this Court sentenced Petitioner to 180 months' incarceration followed by five years' supervised release on November 15, 1999 [Doc. 27]. No direct appeal was taken.

         Nearly seventeen years later-on September 7, 2016-Petitioner filed the instant petition challenging the propriety of his ACCA designation in light of the Johnson decision [Doc. 46 (arguing that he no longer has sufficient predicate offenses for ACCA enhancement)].[2]


         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).

         III. ANALYSIS

         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) (emphasis added). The provision 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). 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).

         Petitioner does not dispute that his 1979 conviction for second-degree burglary and 1980 conviction for armed robbery remain violent felonies after the Johnson decision; the burglary offense under the enumerated-offense clause, see United States v. Jones, 673 F.3d 497, 505 (6th Cir. 2012) (holding that pre-1989 Tennessee second-degree burglary categorically qualifies as generic burglary and is, thus, a violent felony under the enumerated-offense clause), and armed robbery offense under the use-of-physical force clause, see Mitchell v. United States, No. 3:16-cv-132-TAV, 2016 WL 3349281, at *2 (E.D. Tenn. June 15, 2016) (“[A]rmed robbery . . . qualifies as a violent felony under the . . . use-of-physical-force clause.”). As such, the validity of Petitioner's categorization as an armed career criminal depends on whether his 1983 Georgia burglary conviction or 1998 Tennessee aggravated burglary conviction remain violent felonies after the Johnson decision, i.e., under the use-of-physical-force or enumerated-offense clauses.

         At the time Petitioner committed the former offense, the relevant Georgia statute read:

[a] person commits the offense of burglary when, [(1)] without authority and [(2)] with the intent to commit a felony or theft therein, [(3)] he enters or remains [(4)] within the dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other structure designed for use as at the dwelling of another, or enters or remains within any other building, railroad car, aircraft, or any room or part thereof.

Ga. Code Ann. § 16-7-1 (1983). The same provision defined “railroad car” as trailers on flatcars, containers on flatcars, trailer on railroad property, or containers on railroad property. Id. Because the offense can be committed without the use of violent physical force, this Court's ability to rely on the same as an ACCA predicate depends on whether or not it aligns with the generic definition of burglary announced in Taylor v. United States, 495 U.S. 575 (1990), and thereby falls within the scope of the ACCA's enumerated-offense clause. See, e.g., United States v. Ozier, 796 F.3d 597, 604 (6th Cir. 2015) (rejecting challenge where the petitioner's prior convictions qualified as predicate offenses independent of the now-defunct residual clause), overturned on other grounds by Mathis v. United States, 136 S.Ct. 2246, 2251 n.1 (2016).

         To determine whether Petitioner's violation of Georgia Code Annotated § 16-7-1 remains a violent felony under the enumerated-offense clause, the Court needs to identify the precise crime of conviction. Descamps v. United States, 133 S.Ct. 2276, 2285 (2013).[3] To do so, the Court must employ a “categorical approach, ” under which it looks “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 (internal quotations omitted). If the statute categorically aligns with the generic version of the offense, the inquiry is over. If, however, the statute criminalizes conduct in excess of that covered by the enumerated-offense clause, it becomes necessary to determine whether the statute is divisible or indivisible. A divisible statute is one that comprises multiple crimes, alternative sets of elements. Id. at 2281. An indivisible statute is one that contains a single crime, lone set of indivisible elements. Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). When faced with a divisible statute, the Court resorts to the “modified categorical approach, ” i.e., consults “a limited class of documents, such as indictments and jury instructions, to determine which alternative [set of elements] formed the basis of the defendant's prior conviction.” Id. at 2281. Because the categorical and modified approaches are concerned with elements and not “facts underlying [any particular] conviction, ” Id. at 2285, the Court is prohibited from using either ...

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