United States District Court, E.D. Tennessee, Greeneville
GARNETT W. ALLISON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION
RONNIE
GREER 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 [Doc. 29]. He bases the 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 on June 30, 2016 [Doc. 33].
Petitioner did not reply and the time for doing so has now
passed. E.D. Tenn. L.R. 7.1, 7.2. For the reasons below,
Petitioner's § 2255 motion will be DENIED and
DISMISSED WITH PREJUDICE.
I.
BACKGROUND
In
2010, Petitioner pled guilty to possessing a firearm as a
felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 22].
Based on one prior Tennessee conviction for robbery and one
prior Tennessee conviction involving two counts of Class D
simple burglary, the United States Probation Office deemed
Petitioner to be an armed career criminal subject to the
ACCA's fifteen-year mandatory minimum sentence
[Presentence Investigation Report (PSR) ¶¶ 20, 30,
34]. In accordance with that designation, this Court
sentenced Petitioner to 180 months' imprisonment on
October 12, 2010 [Doc. 22]. Petitioner did not file a direct
appeal of his conviction or sentence and, as a result, the
judgment became final for purposes of § 2255(f)(1) on
October 26, 2010.
Five
and a half years later-on May 27, 2016, Petitioner filed the
instant petition for collateral relief based on the
Johnson decision [Doc. 29 (challenging ACCA
designation)].
II.
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).
III.
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 “serious drug
offense” as any “offense under State law,
involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance .
. . for which a maximum term of imprisonment of ten years or
more is prescribed by law.” 18 U.S.C. §
924(e)(2)(A)(ii). The Act goes on to define “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). For purposes of § 924(e)(B)(2)(i),
“the phrase ‘physical force' means violent
force-that is, force capable of causing physical pain or
injury to another person.” Johnson v. United
States, 130 S.Ct. 1265, 1271 (2010). Only 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). Nor
does Johnson disrupt the use of a prior serious drug
offense as an independent form of ACCA predicate conviction.
See, e.g., United States v. Smith, No.
10-CR-20058, 2015 WL 5729114, at *9-13 (E.D. Mich. Sept. 20,
2015) (noting that Johnson does not affect
categorization as an armed career criminal based on prior
serious drug offenses).
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 an offense qualifies under one of the above
provisions, courts must first identify the precise crime of
conviction by employing a “categorical approach,
” looking “only to the statutory
definitions-elements-of a defendant's prior offense, and
not to the particular facts underlying [each individual]
conviction[].” Descamps v. United States, 133
S.Ct. 2276, 2283, 2285 (2013).
Review
of Petitioner's PSR reveals that at least three of his
prior convictions remain violent felonies independent of the
now-defunct residual provision.[1] As an initial matter, the
indictment and judgments attached to the United States's
response demonstrate that both of Petitioner's simple
burglary offenses involved the Class D variant of that crime
[Docs. 33-3, 33-4]. Binding Sixth Circuit authority makes
clear that both offenses remain violent felonies under the
ACCA's enumerated-offense clause. See Priddy,
808 F.3d at 685 (finding that post-1989 Tennessee Class D
burglary is categorically a violent felony under the
ACCA's enumerated offense clause).[2] Further,
Petitioner's prior Tennessee conviction for robbery
remains a violent felony under the ACCA's
use-of-physical-force clause. See, e.g., United
States v. Mitchell, 743 F.3d 1054, 1058-60 (6th Cir.
2014) (holding that all forms of Tennessee robbery are
categorically violent felonies under the ACCA's
use-of-physical-force clause); see also United States v.
Kemmerling, 612 F. App'x 373, 375-76 (6th Cir. 2015)
(reiterating that the Johnson decision did not
affect the use-of-physical-force clause). Because at least
three of his prior convictions remain violent felonies after
the Johnson decision, Petitioner is not entitled to
relief.
IV.
CONCLUSION
For the
reasons discussed above, the § 2255 motion [Doc. 29]
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
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