United States District Court, E.D. Tennessee
DEMARCUS A. OWSLEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
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.
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].
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 capable
of supporting the conviction under § 924(c)(1)(A).
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.
APPROPRIATE JUDGMENT ORDER WILL ENTER.
 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 ...