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Ballew v. United States

United States District Court, W.D. Tennessee, Eastern Division

March 6, 2017

PARIS RAYON BALLEW, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Cr. No. 1:09-cr-20407-JDB-1

          ORDER DENYING AND DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          J. DANIEL BREEN, CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is the pro se 28 U.S.C. § 2255 (“§ 2255”) motion of Petitioner, Paris Rayon Ballew, to vacate, set aside, or correct his sentence (the “Petition”). (ECF No. 1).[1]Ballew, Bureau of Prisons (“BOP”) register number 23188-076, is currently housed at the Federal Correctional Institution, Manchester in Manchester, Kentucky. The United States has filed a response in opposition. (ECF No. 18.) For the reasons discussed below, the Petition is DISMISSED.

         I. BACKGROUND

         A. Case Number 09-cr-20407

         On September 30, 2009, a federal grand jury returned an indictment charging Ballew, who had previously been convicted of a crime punishable by imprisonment for a term exceeding one year, with knowingly possessing and receiving a firearm that had been shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(g). Redacted Indictment, United States v. Ballew, No. 09-20407 (W.D. Tenn. Sept. 30, 2009) (Criminal (“Cr.”) ECF No. 4). A superseding indictment filed on March 15, 2010, retained the § 922(g) charge and added one count of knowing and intentional possession with intent to distribute approximately 281 grams of marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count of knowingly possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(2). (Redacted Indictment, Cr. ECF No. 52.) Attorney A. Russell Larson was appointed to represent Ballew. After Petitioner pleaded not guilty, a jury trial commenced on August 24, 2010. (Minute (“Min.”) Entry, Cr. ECF Nos. 89-91, 94.) He was convicted on all counts. (Min. Entry, Cr. ECF No. 100.)

         Following Ballew's conviction, the United States Probation Office conducted a presentence investigation and prepared a report (“PSR”) in anticipation of sentencing. (See PSR.) As a juvenile, Petitioner was found delinquent with respect to three counts of aggravated robbery and one count of attempted aggravated robbery. (PSR at ¶ 22.) He was also convicted as an adult of one count of attempted aggravated robbery. (Id. at ¶ 23.) These convictions qualified the inmate as an armed career criminal under 18 U.S.C. § 924(e), which carries a mandatory minimum sentence of 180 months. (Id. at ¶ 23.) Further, the Probation Office concluded that Petitioner “used or possessed the firearm . . . in connection with . . . a controlled substance offense, ” subjecting him to an automatic offense level adjustment of 34. U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.4(b)(3)(A) (2009);[2] see PSR at ¶ 18. Finally, because Ballew possessed a firearm in furtherance of a drug trafficking crime, he qualified for a mandatory minimum sentence of five years, “to run consecutive to any mandatory minimum applied in this case.” (PSR at ¶ 21; see 18 USC § 924(c).) His criminal history category was VI. (PSR at ¶ 27.) The Probation Office calculated his guideline range at 262 to 327 months, plus 60 months consecutive. (Id. at 19.)

         On December 21, 2010, attorney Jon York was appointed to represent Petitioner at sentencing. (Cr. ECF No. 120.) At the hearing on April 27, 2011, the Court sentenced him to a total of 240 months. (Min. Entry, Cr. ECF No. 146.) Ballew received the mandatory minimum sentences required by 18 U.S.C. §§ 924(c) and 924(e), imposed consecutively. His sentence also included three years of supervised release and a $300 special assessment. (Id.) Petitioner timely appealed, Cr. ECF No. 149, and the Sixth Circuit Court of Appeals affirmed the judgment on August 6, 2012, United States v. Ballew, 491 F. App'x 589 (6th Cir. 2012).

         B. Case Number 13-cv-1198

         On June 24, 2013, Petitioner moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF Nos. 1-2.) He filed a memorandum of law on January 21, 2014, ECF No. 9, and the government filed its response in opposition on September 1, 2014, ECF No. 18. Ballew has also filed a reply, ECF No. 21, and an addendum in support of the current petition, ECF No. 22. The inmate advances numerous arguments, including multiple claims of ineffective assistance counsel and multiple arguments challenging his status as an armed career criminal under 18 U.S.C. § 924(e). (ECF Nos. 9, 22.) He also requests an evidentiary hearing. (ECF No. 2 at 41.)

         II. LEGAL STANDARDS

Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         “A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation and internal quotation marks omitted). Generally speaking, “[d]efendants must assert their claims in the ordinary course of trial and direct appeal.” Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). A § 2255 motion is no substitute for a direct appeal. See Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). Constitutional claims that could have been raised on direct appeal, but were not, will be barred by procedural default unless the petitioner demonstrates cause and prejudice sufficient to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may obtain review of a procedurally defaulted claim by demonstrating his “actual innocence.” Bousley v. United States, 523 U.S. 614, 622 (1998).

         Claims of ineffective assistance of counsel, however, are not subject to the ordinary rules of procedural default, as “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.” Massaro v. United States, 538 U.S. 500, 509 (2003). Indeed, “[i]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.” United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012) (quoting Massaro, 538 U.S. at 504)).

         After a § 2255 motion is filed, the Court reviews it, and “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . .” Rule 4(b), Rules Governing Section 2255 Cases in the United States District Courts (“Section 2255 Rules”). “If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.” Id. The movant is entitled to reply to the government's response. Rule 5(d), Section 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, Section 2255 Rules.

         “In reviewing a § 2255 motion in which a factual dispute arises, ‘the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.'” Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). ‘“[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'” Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Where the judge considering the § 2255 motion also presided over the criminal case, the judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977). A defendant has the burden of proving that he is entitled to relief by a preponderance of the evidence, Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006), and a § 2255 motion may be dismissed if it only makes vague conclusory statements without substantiating allegations of specific facts and, consequently, fails to state a viable claim, Ryals v. United States, No. 1:05-cv-238, 2009 WL 595984, *5 (E.D. Tenn. March 6, 2009); Stamper v. United States, No. 1:05-cv-317, 2008 WL 2811902, * 1 (E.D. Tenn. July 18, 2008).

         III. ANALYSIS

         A. The Armed Career Criminal Act

         Ballew presents several different claims arguing that he was improperly sentenced under the Armed Career Criminal Act (“ACCA”). The ACCA imposes a mandatory minimum sentence of fifteen years for defendants who are convicted of violating 18 U.S.C. § 922(g) and have “three previous 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 Act defines a “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

§ 924(e)(2)(B).

         1. Johnson claim

         On June 27, 2016, Petitioner filed an addendum to his § 2255 petition seeking review under Johnson v. United States, 133 S.Ct. 2551 (2015).[3] (ECF No. 22.) He argues that his juvenile convictions for aggravated robbery and attempted aggravated robbery no longer qualify as predicate convictions under the ACCA in light of Johnson. (ECF No. 22 at 1.) In that case, the Supreme Court struck down as void for vagueness the ACCA's residual clause, which qualified as a “violent felony” any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Court made clear that its “decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” Johnson, 135 S.Ct. at 2563. These other, unaffected sections of the ACCA are commonly referred to as the “use-of-force clause” (§ 924(e)(2)(B)(i)) and the “enumerated-offense” clause (the first portion of § 924(e)(2)(B)(ii)). United States v. Priddy, 808 F.3d 676, 687 (2015).

         Johnson has no bearing on Ballew's case because he was not sentenced under the residual clause of the ACCA. The Sixth Circuit has “held that a Tennessee conviction for robbery qualifies as a violent felony under the ACCA's use-of-force clause.” Id. at 686 (citing United States v. Mitchell, 743 F.3d 1054, 1059 (6th Cir. 2014)). “More recently, [the court] held . . . that the Supreme Court's recent decision in Johnson ‘did not affect the “use of physical force clause”' and affirmed a defendant's ACCA-enhanced sentence because his prior Tennessee robbery conviction qualified as a violent felony under the use-of force clause.” Id. (quoting United States v. Kemmerling, 612 F. App'x 373, 376 (6th Cir. 2015)). The court also considered whether Johnson disrupted its holding in Mitchell:

The Mitchell court found that under the categorical approach, a Tennessee robbery conviction is a violent felony under both the use-of-force clause and the residual clause. The conviction need only qualify as a violent felony under one of the clauses. Therefore, even in light of the Supreme Court's invalidation of the residual clause, this Court's determination remains unchanged that under the categorical approach, robbery in Tennessee is a predicate offense under the use of- force clause.

Id. Thus, Petitioner's convictions for aggravated robbery and attempted aggravated robbery qualify as predicate offenses independent of the ACCA's residual clause. Johnson does nothing to vitiate the validity of his sentence and his claim on this ground is DENIED.

         2. Claims under Alleyne and Descamps

         Ballew also avers that he is entitled to relief from his sentence pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), and Descamps v. United States, 133 S.Ct. 2276 (2013). (ECF No. 9 at 10-11.) Both cases were decided after Petitioner's conviction became final following his direct appeal. “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310 (1989). The first exception is that “[n]ew substantive rules generally apply retroactively.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004). “Second, new ‘watershed rules of criminal procedure, ' which are procedural rules ‘implicating ...


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