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McCullom v. United States

United States District Court, E.D. Tennessee, Chattanooga

March 15, 2017

ANTHONY D. MCCULLOM, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          TRAVIS R. MCDONOUGH 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. 54]. Petitioner bases his request for collateral 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.; Doc. 55]. The United States responded in opposition on July 1, 2016 [Doc. 57]; Petitioner replied on July 25, 2016 [Doc. 61]. For the reasons below, Petitioner’s § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2003, Petitioner pled guilty to, and was subsequently convicted of, four Hobbs Act robberies, all in violation of 18 U.S.C. § 1951; and two counts of using and carrying a firearm during and in relation to a crime of violence, both in violation of 18 U.S.C. § 924(c) [Docs. 28, 47]. This Court sentenced Petitioner to an aggregate term of 247 months’ imprisonment on November 4, 2003 [Doc. 47]. Petitioner did not file a direct appeal of his conviction or sentence. On June 1, 2016, Petitioner filed the instant motion challenging his conviction under § 924(c) based on the Johnson decision [Doc. 54].[1]

         II. STANDARD OF REVIEW

         To obtain relief under 28 U.S.C. § 2255, 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

         Petitioner argues that the Johnson decision invalidated the residual clause in § 924(c)(3)(B)’s definition of crime of violence and that the absence of that provision requires vacatur of his conviction under § 924(c)(1)(A). The argument fails because binding Sixth Circuit precedent holds that while Johnson invalidated the residual provision of the ACCA, § 924(c)(3)(B)’s definition of crime of violence remains unaffected.[2] See; United States v. Taylor, 814 F.3d 340, 376–79 (6th Cir. 2016) (recognizing at least four “significant differences” between the residual clause in § 924(c)(3)(B) and the ACCA’s residual clause and noting “the argument that Johnson effectively invalidated [the former] is . . . without merit”). As such, Hobbs Act robbery remains a crime of violence under § 924(c)(1)(A).

         IV. REQUEST FOR A STAY

         To the extent that Petitioner requests in his reply that the Court “stay the issuance of its decision on [the instant] petition” pending resolution of a government-filed writ of certiorari in a Ninth Circuit decision addressing impact of the Johnson decision on § 924(c) and possible request for rehearing en banc by the petitioner in the Taylor decision [Doc. 61 pp. 2–3], the Court declines.

         The binding nature of the Taylor decision is in no way altered by the fact that other Courts of Appeal have reached the opposite conclusion about the impact of the Johnson decision on § 924(c)’s residual clause or the fact that the Sixth Circuit reached a different conclusion in the context of 18 U.S.C. § 16(b). Nor is the binding nature of the Taylor decision impacted by the potential for a rehearing en banc. See, e.g., United States v. Matos, No. 3:13-cr-98, 2014 WL 1922866, at *3 (W.D. Ky. May 14, 2014) (explaining that a “district court is bound to follow the holding of a prior decision of the Court of Appeals for the circuit in which the district court is located until that binding precedent is expressly overruled.” (citation omitted)); accord D’Ambrosio v. Bagley, 688 F. Supp. 2d 709, 721 (N.D. Ohio 2010) (“This is a district court, and it must follow binding precedent when such precedent exists.”).

         V. CONCLUSION

         For the reasons discussed, Petitioner’s § 2255 motion [Doc. 54] will be DENIED and DISMISSED WITH PREJUDICE. The Court will CERTIFY any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, this Court will DENY Petitioner leave to proceed in forma pauperis on appeal. See Rule 24 of the Federal Rules of Appellate Procedure. Petitioner having failed to make a substantial showing of the ...


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