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Frazier v. United States

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

March 23, 2017

RICKEY ALLEN FRAZIER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 33].[1] 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 [Id.]. The United States responded in opposition to the pro se petition on February 24, 2016 [Doc. 35], and the supplemented petition on May 23, 2016 [Doc. 43]. Petitioner replied in turn on March 28, 2016 [Doc. 36], and July 6, 2016 [Doc. 46]. Also before the Court is FDSET's motion for leave to amend the petition [Docs. 38, 39, 40]. For the reasons that follow, FDSET's request for leave to amend [Doc. 38] will be GRANTED and Petitioner's supplemented § 2255 petition [Docs. 33, 39, 40] 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)(1) [Doc. 14]. Based on four prior Tennessee convictions, the United States Probation Office deemed Petitioner to be an armed career criminal subject to the ACCA's fifteen year mandatory minimum [Presentence Investigation Report (PSR) ¶¶ 25, 33, 37, 38]. Consistent with that designation, this Court sentenced Petitioner to 235 months' imprisonment on May 12, 2005 [Doc. 21]. Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence on September 20, 2006 [Doc. 28].

         Over six years later-on January 28, 2016, Petitioner filed the instant petition for relief based on the Johnson decision [Doc. 33 (challenging ACCA designation)]. Consistent with their obligations under this Court's Standing Order, FDSET filed two supplements [Docs. 39, 40].

         II. REQUEST FOR LEAVE TO AMEND

         Several months after Petitioner filed the pro se petition challenging his ACCA designation, counsel filed a motion for leave to file a supplement in support of that claim [Doc. 38]. The Federal Rules of Civil Procedure provide that leave to amend should “be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Relevant factors include “undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.” Anderson v. Young Touchstone Co., 735 F.Supp.2d 831, 833 (W.D. Tenn. 2010) (quoting Forman v. Davis, 371 U.S. 178, 182 (1965)). For good cause shown, FDSET's motion is GRANTED.

         III. SUPPLEMENTED 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 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. at 2563. The Court went on to make clear, however, that its decision did not call into question the remainder of the ACCA's definition of violent felony-the use-of-physical-force and enumerated-offense clauses. Id.; United States v. Priddy, 808 F.3d 676, 682-83 (6th Cir. 2015).

         The validity of Petitioner's sentence thus depends on whether three or more of his prior convictions qualify as “serious drug offenses” under § 924(e)(2)(A) or, in alternative, “violent felonies” under one of the unaffected provisions of § 924(e)(2)(B). See, e.g., United States v. Ozier, 796 F.3d 597, 604 (6th Cir. 2015) (denying petition where conviction qualified as a predicate offense independent of the residual clause), overruled on other grounds by Mathis v. United States, 136 S.Ct. 2243, 2251 n. 1 (2016). To determine whether a particular offense qualifies as a violent felony under any of the prongs of the above definition, courts must first identify the precise crime of conviction. Descamps v. United States, 133 S.Ct. 2276, 2285 (2013). They do so by employing a “categorical approach, ” under which they look “only to the statutory definitions-elements-of a defendant's prior offense, and not to the particular facts underlying [each individual] conviction[].” Id. at 2283. When the conviction involves violation of a “divisible” statute-one which comprises multiple, alternative versions of the crime-courts resort to the “modified categorical approach” under which they “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction.” Id. at 2281.

         The Court finds that at least three of the prior convictions used to categorize Petitioner as an armed career criminal-the 1981 second-degree burglary, 1982 third-degree burglary, and 1985 voluntary manslaughter-categorically qualify as predicate offenses independent of the residual clause invalidated ...


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