United States District Court, E.D. Tennessee, Chattanooga
BOBBY E. HARVEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
K. Lee Magistrate Judge
R. MCDONOUGH 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 [Doc. 75]. The petition 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.]. On August 3, 2016,
Petitioner filed a supplement in support of relief citing the
Supreme Court's intervening decision in Mathis v.
United States, 136 S.Ct. 2246 (2016) [Doc. 77]. Also
before the Court is Petitioner's motion for an update
regarding the “status of [his] case” [Doc. 76].
For the reasons discussed below, the supplemented petition
[Docs. 75, 76] will be DENIED and DISMISSED WITH PREJUDICE.
Petitioner's request for a “status” update
[Doc. 76] will be DENIED AS MOOT.
2005, Petitioner was convicted of possession with intent to
distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C) [Doc. 56]. Based on a 1984
Tennessee conviction for armed robbery and a 2003 Tennessee
conviction for possession of a Schedule II controlled
substance [Presentence Investigation Report (PSR)
¶¶ 23, 39], the United States Probation Office
deemed Petitioner to be a career offender under Section 4B1.1
of the United States Sentencing Guidelines [Id.
¶ 18]. In accordance with that designation, this Court
sentenced Petitioner to 262 months' imprisonment on
August 4, 2005 [Doc. 56]. Petitioner appealed, but the Sixth
Circuit affirmed his conviction and sentence on May 7, 2007.
United States v. Harvey, No. 05-6163, 2007 WL
1339837 (6th Cir. May 7, 2007). Petitioner did not seek a
writ of certiorari.
than nine years later-on June 8, 2016, Petitioner filed the
instant request for collateral relief based on the
Johnson decision [Doc. 75]. In it, he argues that
the decision removed Tennessee armed robbery from the
definition of “crime of violence” contained in
Section 4B1.2 and that, without that conviction, he no longer
has sufficient predicate convictions for career-offender
enhancement [Id.]. Recently, he submitted a
supplement to the original petition in which he argues that
the Mathis decision prevents categorization of his
drug conviction as a controlled substance offense [Doc. 77].
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 Court finds that it need not
resolve the issue here, however, because neither the
Johnson decision nor the Mathis decision
has any impact on Petitioner's career-offender status.
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).
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.
4B1.1 of the United States Sentencing Guidelines classifies a
defendant as a career offender if (1) he or she was at least
eighteen years old at the time the defendant committed the
instant offense; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) he or she has at least two prior
felony convictions of either a crime of violence or a
controlled substance offense. U.S. Sentencing Manual §
4B1.1(a). Only Petitioner's satisfaction of the third
prong-possession of two qualifying predicate convictions-is
disputed [Docs. 75, 77].
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 ...