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Owsley v. United States

United States District Court, E.D. Tennessee

March 23, 2017

DEMARCUS A. OWSLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 121, 123]. He 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.]. The United States responded in opposition on September 7, 2016 [Doc. 125]. For the reasons below, Petitioner's § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2014, Petitioner pled guilty to, and was subsequently convicted of, two counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951; and one count of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) [Doc. 80]. On September 23, 2014, this Court sentenced Petitioner to an aggregate 150 month term of imprisonment-concurrent 66-month terms for the Hobbs Act robberies and a consecutive 84-month term for the § 924(c) offense [Id.]. No direct appeal was taken. On June 27, 2016, Petitioner filed the instant motion challenging his conviction under § 924(c) based on the Johnson decision [Docs. 121, 123].[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 capable of supporting the conviction under § 924(c)(1)(A).

         IV. CONCLUSION

         For the reasons discussed, Petitioner's § 2255 motion [Docs. 121, 123] 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 denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Rule 22(b) of the Federal Rules of Appellate Procedure.

         AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

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Notes:

[1] The Court finds that it need not determine whether the petition is timely under § 2255(f)(1) because, even if the § 2255 motion was filed within the applicable one-year statute of limitations, the Johnson decision does not ...


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