United States District Court, E.D. Tennessee
ALLEN E. MONDAY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's successive motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 [Doc. 94]. He 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.]. For the reasons
that follow, the petition will be DENIED and DISMISSED WITH
1999, a jury convicted Petitioner of possessing a firearm as
a felon, in violation of 18 U.S.C. § 922(g)(1).
United States v. Monday, 8 F. App'x 394, 395
(6th Cir. 2001). Based on three prior Tennessee
convictions-one for second-degree burglary and two for
first-degree burglary, 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) ¶¶ 32, 38]. In
accordance with that designation, this Court sentenced
Petitioner to 262 months' imprisonment. Monday,
8 F. App'x 395. Petitioner appealed, but the Sixth
Circuit affirmed his conviction and sentence. Id. at
403. The Supreme Court denied Petitioner's request for a
writ of certiorari on October 1, 2001. Monday v. United
States, 534 U.S. 914 (2001).
years later-on September 30, 2002, Petitioner filed a motion
to vacate, correct, or set aside his sentence under §
2255 [Doc. 79]. This Court denied that petition on the merits
in a Memorandum Opinion and Judgment Order entered on June
21, 2006 [Docs. 82, 83]. The Supreme Court issued the
Johnson decision on June 26, 2015, and the Sixth
Circuit granted this Court leave to consider the instant
successive petition on December 21, 2016 [Doc. 93].
PETITION FOR COLLATERAL RELIEF
Standard of Review
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).
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).
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 prior offense, and not to the
particular facts underlying [each individual]
conviction.” Descamps v. United States, 133
S.Ct. 2276, 2283, 2285 (2013).
Court finds that all three of the prior convictions used to
categorize Petitioner as an armed career criminal
categorically qualify as predicate offenses independent of
the residual clause invalidated by the Johnson
decision. As such, no award of collateral relief is
time that Petitioner committed his burglary offenses,
Tennessee defined first-degree burglary as the breaking and
entering into a dwelling house or any house, building, room
or rooms therein used and occupied by any person or person as
a dwelling place or lodging by night, with intent to commit a
felony. Tenn. Code Ann. § 39-3-402 (1982). Tennessee defined
second-degree burglary as the breaking and entering into a
dwelling house or any house, building, room or rooms therein
used and occupied by any person or persons as a dwelling
place or lodging by day, with intent to commit a felony.
Tenn. Code Ann. § 39-3-403 (1982).
purposes of § 924(e), the Supreme Court defines
“burglary” as any conviction, “regardless
of its exact definition or label, having the basic elements
of unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.”
Taylor v. United States, 495 U.S. 575, 599 (1990).
Because all three of Petitioner's prior burglary
convictions correspond perfectly with Taylor's
definition, see, e.g., Smith v. United
States, No. 3:05-cr-74, 2016 WL 3349298, at *6 (E.D.
Tenn. June 15, 2016) (finding, post-Johnson, that
first-degree burglary constituted an ACCA predicate and that
the only difference between first-and-second-degree burglary
is that one occurred by night and the other by day);
United States v. Jones, 673 F.3d 497, 505 (6th Cir.
2012) (holding that pre-1989 ...