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Jordan v. United States

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

March 23, 2017

HENRY JORDAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          RAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docs. 114, 119.) Petitioner bases his request for 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. The United States responded in opposition on July 5, 2016. (Doc. 117.) Petitioner did not reply, and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. Also before the Court is Petitioner's request that the Court appoint counsel to assist in the litigation of his Johnson-based petition. (Doc. 118.) For the reasons that follow, Petitioner's request for counsel will be DENIED as moot, and his § 2255 petition will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2005, Petitioner pled guilty to possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g), possessing marijuana within intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), and possessing a firearm in furtherance of a drug trafficking offense, in violation of § 924(c)(1)(A)(i). (Presentence Investigation Report (“PSR”) at ¶¶ 12, 15.) Based on two prior Tennessee convictions for second-degree burglary, one prior Tennessee conviction for third-degree burglary, and one prior Tennessee conviction for armed robbery, the United States Probation Office deemed Petitioner to be an armed career criminal subject to the ACCA's fifteen-year mandatory minimum. (Id. at ¶¶ 44, 49, 51, 52, 67.) The probation officer also designated Petitioner a career offender under Section 4B1.1 of the United States Sentencing Guidelines and assigned an advisory Guideline range of 262 to 327 months' incarceration. (Id. at ¶¶ 43, 51, 52, 56, 68.) On January 19, 2006, the Court sentenced Petitioner to 240 months' imprisonment-180 months for the § 922(g) offense, a concurrent term of 60 months for the drug conviction, and a consecutive term of 60 months for the § 924(c) conviction. (Doc. 45.) Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence. United States v. Jordan, 308 F. App'x 990 (6th Cir. 2009).

         On April 14, 2009, Petitioner filed a motion to vacate, correct, or set aside his sentence under § 2255. (Doc. 70.) This Court denied and dismissed that petition on the merits on October 25, 2012. (Docs. 100, 101.) The Supreme Court issued the Johnson decision on June 26, 2015, and Petitioner asked the Sixth Circuit for leave to file a successive petition. On June 2, 2016, Petitioner filed the instant authorized petition for relief based on the Johnson decision. (Docs. 114, 115, 119.)

         II. REQUEST FOR COUNSEL

         Petitioner requests that the Court appoint counsel to assist in the litigation of the Johnson-based collateral challenge. (Doc. 118.) By Standing Order on February 11, 2016, the Court instructed the Federal Defender Services of Eastern Tennessee (“FDSET”) to “identify defendants with a claim for relief under Johnson” and appointed FDSET to “represent any defendant who seeks relief under § 2255 in light of Johnson.” E.D. Tenn. SO-16-02 (Feb. 11, 2016). Because the Court already appointed counsel to look into whether he has a claim and supplement his filings where appropriate, Petitioner's request for counsel to do the same will be DENIED as moot.

         III. PETITION FOR COLLATERAL RELIEF

         A. Standard of Review

         The 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).

         B. Analysis

         The petition contains two grounds for collateral relief: (1) the Johnson decision removed an unspecified number of petitioner's prior convictions from § 924(e)'s definition of “violent felony” such that, without those conviction, Petitioner no longer has sufficient predicates for enhancement; and (2) the Johnson decision removed third-degree burglary from Section 4B1.2's definition of “crime of violence” such that, without that conviction, he no longer qualifies as a career offender.

         1. Propriety of Armed Career Criminal Designation

         The 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) (emphasis added). The provision 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). Only the third portion of the above definition-the residual clause-was held to be unconstitutionally vague by the Supreme Court in Johnson. 135 S.Ct. ...


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