United States District Court, E.D. Tennessee, Chattanooga
ANTHONY D. MCCULLOM, Petitioner,
UNITED STATES OF AMERICA, Respondent.
R. MCDONOUGH UNITED STATES DISTRICT JUDGE.
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.
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].
STANDARD OF REVIEW
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).
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. 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
REQUEST FOR A STAY
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.
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
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 ...