United States District Court, E.D. Tennessee
THEODORE E. GARDNER, JR, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Christopher H. Steger Magistrate Judge
R. MCDONOUGH 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. 34.) 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 February 3, 2017. (Doc.
36.) 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 successive § 2255 motion will be DENIED
and DISMISSED WITH PREJUDICE.
enforcement officers found a handgun in Petitioner's
vehicle during the course of a traffic stop for drunk
driving. (Presentence Investigation Report (PSR) ¶¶
4-5.) He subsequently pled guilty to possessing that firearm
as a felon, in violation of 18 U.S.C. § 922(g)(1).
(Id. ¶¶ 1-2.) Based on nineteen prior
Florida convictions-three for robbery (Id.
¶¶ 27, 30, 32), four for armed robbery
(Id. ¶¶ 28, 31), three for aggravated
assault (Id. ¶¶ 29, 31, 32), two for
kidnapping (Id. ¶¶ 27, 32), six for
burglary (Id. ¶¶ 25, 27, 28, 30, 31, 32),
and one for attempted burglary (Id. ¶ 29), the
United States Probation Office deemed Petitioner to be an
armed career criminal subject to the ACCA's fifteen-year
statutory minimum. In accordance with that designation, the
Court sentenced Petitioner to 200 months' imprisonment.
(Doc. 15.) He appealed, but the Sixth Circuit affirmed his
conviction and sentence on March 7, 2008. (Doc. 21.) He did
not seek a writ of certiorari.
4, 2010, Petitioner filed a motion to vacate, set aside, or
correct his sentence. (Doc. 24.) This court denied that
motion in a Memorandum Opinion and Judgment Order entered on
April 16, 2012. (Docs. 25, 26.) The Supreme Court issued the
Johnson decision on June 26, 2015, and Petitioner
requested leave to file a successive petition based on that
decision. On January 10, 2017, this Court received the
instant challenge to Petitioner's ACCA designation in
light of the Johnson decision. (Doc. 34.) The Sixth
Circuit has authorized the filing. (Doc. 33.)
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 “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).
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).
of Petitioner's PSR reveals that at least seven of his
prior convictions remain violent felonies independent of the
now-defunct residual provision. Specifically, all of his strong
arm and armed robbery convictions qualify as predicates under
the use-of-physical-force clause.
purposes of § 924(e)(2)(B)(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). Any level of force is sufficient so long
as it is capable of causing any injury, “regardless of
[the injury's] gravity or duration.” United
States v. Evans, 699 F.3d 858, 863 (6th Cir. 2012). The
Court must look to the “minimum conduct
criminalized” to determine whether Florida robbery
categorically involves force sufficient to satisfy the
use-of-physical-force clause. Moncrieffe v. Holder,
133 S.Ct. 1678, 1684 (2013).
time that Petitioner committed the offenses, Florida defined
strong arm robbery as “the taking of money or other
property which may be the subject of larceny from the person
or custody of another, with intent to enter permanently or
temporarily deprive the person or the owner of the money or
other property, when in the course of the taking there is the
use of force, violence, assault, or putting in fear, ”
Fla. Stat. § 812.13(1), and armed robbery as commission
of the same offense while carrying “a firearm or other
deadly weapon, ” Fla. Stat. § 812.13(2). Because
Florida law requires that the money or property taken be in
the possession or custody- defined as “sufficiently
under the victim's control so that the victim could have
prevented the taking if she had not been subjected to
violence or intimidation by the robbery, ” Jones v.
State, 652 So.2d 346, 350 (Fla. 1995); see also
Magnotti v. State, 842 So.2d 963, 965 (Fla. 4th Dist.
App. 2003) (“[T]he fear contemplated by the statute is
the fear of death or great bodily harm.”)- of the
person robbed, violations of Florida Statute § 812.13
invariably involve at minimum a threatened use of violent
force, i.e., force capable of causing physical pain or
injury. See United States v. Fritts, 841 F.3d 937,
939 (11th Cir. 2016) (holding that Florida robbery
categorically qualifies as an ACCA predicate under the
use-of-force clause); United States v. Lockley, 632
F.3d 1238, 1245 (11th Cir. 2011) (holding that Florida
robbery qualifies as a crime of violence under the ...