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Couch v. United States

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

March 16, 2017

JOHN COUCH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING 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

          S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (the “§ 2255 Motion”) filed by Petitioner John Couch (“Couch”), Bureau of Prisons register number 14315-076, an inmate at USP Lee in Jonesville, Virginia (§ 2255 Motion, ECF No. 1). For the reasons stated below, Couch's § 2255 Motion is DENIED.

         BACKGROUND

         On April 21, 1993, a federal grand jury sitting in the Western District of Tennessee returned an indictment against Couch and two others charging each with multiple counts of aiding and abetting bank robbery in violation of 18 U.S.C. § 2113 and knowingly and intentionally using and carrying a firearm in relation to a crime of violence, to wit the bank robberies, in violation of 18 U.S.C. § 924(c). On January 12, 1994, a jury found Couch guilty of all charges. The Court sentenced Couch on July 1, 1994, to a total term of incarceration of 488 months to be followed by three years' supervised release. (See Judgment, ECF No. 194.) Couch appealed, and the United States Court of Appeals for the Sixth Circuit affirmed the Court's judgment on October 5, 1995.

         Couch filed his § 2255 Motion on June 29, 2016, arguing that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015). Couch argues that the Supreme Court's holding in Johnson that the residual clause of the Armed Career Criminal Act (“ACCA”) was unconstitutionally void for vagueness renders invalid his convictions under § 924(c). Couch does not actually claim that the Court sentenced him under the ACCA's residual clause. Couch argues instead that after Johnson, his bank robbery convictions no longer constitute “crimes of violence, ” an essential element of his convictions under § 924(c) for using and carrying a firearm during a “crime of violence.”

         Pursuant to Administrative Order 2016-21, the United States Probation Office conducted an initial review of Couch's claim under Johnson v. United States. On February 17, 2017, the probation officer submitted a memorandum to the Court, recommending that Couch was not entitled to any relief under Johnson.

         STANDARD OF REVIEW

         Couch seeks habeas relief in this case pursuant to 28 U.S.C. § 2255(a). The statute reads as follows:

[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.”[1]

         Dismissal of a § 2255 motion is mandatory if the motion, exhibits, and the record of prior proceedings show that the petitioner is not entitled to relief.[2] If the habeas court does not dismiss the motion, the court must order the United States to file its “answer, motion, or other response within a fixed time, or take other action the judge may order.”[3] The petitioner is then entitled to reply to the government's response.[4] The habeas court may also direct the parties to provide additional information relating to the motion.[5] The petitioner has the burden of proving that he is entitled to relief by a preponderance of the evidence.[6]

         ANALYSIS

         The Court holds that Couch is not entitled to relief pursuant to Johnson v. United States, 135 S.Ct. 2251 (2015). The Supreme Court in Johnson explained that the United States Code makes it a crime against the United States for certain classes of persons, such as convicted felons, to possess firearms and provides for a punishment of up to ten years' imprisonment.[7] The ACCA increases the penalty for unlawful possession of a firearm where the offender has “three or more earlier convictions for a ‘serious drug offense' or a ‘violent felony'” and sets a minimum term of imprisonment of 15 years and a maximum of life.[8] The ACCA 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.”[9] The phrase “or otherwise involves conduct that presents a serious potential risk of physical injury to another” has come to be known as the ACCA's residual clause.

         In Johnson, the Supreme Court held that the residual clause was unconstitutionally void for vagueness.[10] Johnson left the ACCA's use-of-force clause and enumerated offenses clause undisturbed. In Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court subsequently held that, as applied to ACCA cases, Johnson is a new substantive rule of constitutional law that has been made retroactive to cases on collateral review, and therefore, defendants can bring initial or successive 28 U.S.C. § 2255 petitions challenging their sentences enhanced under the ACCA's residual clause.

         Johnson affords Couch no relief because the Court did not sentence Couch under the ACCA's residual clause. In fact, the Court did not sentence Couch under the ACCA at all. Couch argues that Johnson somehow reaches the statutory definition of a “crime of violence” as 18 U.S.C. § 924(c) uses that phrase. Under § 924(c), anyone who uses or carries a firearm during or in relation to a “crime of violence” is subject to a mandatory minimum sentence. For purposes of § 924(c), a “crime of violence” is a felony offense that

(A) has an element the use, attempted use, or threatened use of physical force against the person or ...

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