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Shropshire v. United States

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

April 10, 2017

DAVID SHROPSHIRE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Magistrate Judge, Christopher H. Steger

          MEMORANDUM OPINION

          TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 202.)[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 (Doc. 204); Petitioner replied in turn (Doc. 207). Recently, Petitioner field an “expedited motion” for a hearing on the merits (Doc. 208); the United States again responded in opposition (Doc. 209). For the reasons that follow, the § 2255 petition will be GRANTED. The request for an expedited hearing will be DENIED as moot.

         I. BACKGROUND

         In 2002, Petitioner pled guilty to possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g), and committing a Hobbs Act robbery, in violation of 18 U.S.C. § 1951. (Doc. 149.) Based on four prior Tennessee felony convictions-a 1974 first-degree murder conviction, a 2000 aggravated assault conviction, a 2000 reckless driving conviction, and a 2000 attempted carjacking conviction-the United States Probation Office deemed Petitioner to be an armed career criminal subject to the ACCA's fifteen-year term of imprisonment. (Presentence Investigation Report (PSR) ¶¶ 36, 41, 48, 50-51, 74.) In accordance with that designation, this Court sentenced Petitioner to 211 months' imprisonment. (Docs. 96, 106.) Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence on May 19, 2008. (Doc. 149.) He did not seek a writ of certiorari.

         On October 31, 2008, Petitioner filed a § 2255 motion seeking to vacate, set aside, or correct his sentence. (Docs. 151, 152.) This Court denied that petition on the merits in a Memorandum Opinion and Judgment Order entered on September 13, 2011. (Docs. 175, 176.) The Supreme Court issued the Johnson decision on June 26, 2015. The Sixth Circuit authorized this Court to consider the instant successive petition on November 28, 2016. (Docs. 198, 202.)

         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 petition contains a single ground for collateral relief, arguing that the Johnson decision removed aggravated assault, reckless driving, and attempted carjacking from the definition of “violent felony” in § 924(e) and that, without those convictions, Petitioner no longer qualifies for ACCA enhancement. (Doc. 202 (challenging the status of Petitioner's attempted carjacking and reckless driving offenses); Doc. 203 (challenging the status of his aggravated assault offense).)

         A. Propriety of ACCA Designation After the Johnson Decision

         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). Only the third portion of the above definition-the residual clause-was held to be unconstitutionally vague by the Supreme Court in the Johnson decision. 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 prior serious drug offenses 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 a defendant's categorization as an armed career criminal based on his or her prior serious drug offenses).

         Petitioner does not dispute that his 1974 conviction for first-degree murder remains a violent felony under the use-of-physical-force clause, and the United States agrees that his 2000 conviction for reckless driving only qualified as a predicate offense under the now-defunct residual provision. (Doc. 204, at 3 (stipulating that “[P]etitioner's reckless driving conviction, which was initially classified as a violent felony, no longer constitutes a violent felony post-Johnson).) As such, the continued validity of Petitioner's categorization as an armed career criminal depends on whether his 2000 convictions for attempted carjacking and aggravated assault remain “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 convictions qualified as a predicates independent of the residual ...


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