United States District Court, E.D. Tennessee, Knoxville
W. PHILLIPS SENIOR 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. 57]. 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 January 17, 2017 [Doc. 64].
Petitioner did not reply and the time for doing so has now
passed. E.D. Tenn. L.R. 7.1, 7.2. The Court is also in
possession of Petitioner's request to hold the case in
abeyance pending authorization from the Sixth Circuit [Doc.
54]. For the reasons below, Petitioner's request to hold
the action in abeyance will be DENIED as moot and § 2255
motion will be DENIED and DISMISSED WITH PREJUDICE.
2005, Petitioner pled guilty to three counts of possessing a
firearm as a felon, all in violation of 18 U.S.C.
§§ 922(g)(1) [Doc. 33]. Based on three prior
Florida robbery convictions, 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) ¶¶
19, 28, 32, 33]. In accordance with that designation, this
Court sentenced Petitioner to 180 months' imprisonment on
January 17, 2006 [Doc. 33]. Petitioner appealed, but the
Sixth Circuit affirmed his conviction and sentence on April
3, 2007 [Doc. 38]. He did not seek a writ of certiorari.
October 29, 2008, Petitioner filed a motion to vacate, set
aside, or correct his sentence [Doc. 45]. This court denied
that motion in a Memorandum Opinion and Judgment Order
entered on February 28, 2012 [Docs. 50, 51]. 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 November 2, 2016, this Court
received the instant challenge to Petitioner's ACCA
designation in light of the Johnson decision [Doc.
57]. The Sixth Circuit has authorized the filing [Doc. 56].
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 three of his
prior convictions remain violent felonies independent of the
now-defunct residual provision. Specifically, all three of his
Florida robbery convictions qualify as predicates under the
ACCA's 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-1988 and 1992
[PSR ¶¶ 28, 32, 33], Florida defined 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). 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(1) 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 Guidelines use-of-physical-force clause);
United States v. Dowd, 451 F.3d 1244, 1255 (11th
Cir. 2006) (concluding “without difficulty” that
Florida armed robbery categorically qualifies as an ACCA
predicate under the use-of-force-clause); Hunter v.
United States, No. 3:16-cv-396-RLJ, 2016 WL 7156536, at
*4 (E.D. Tenn. Dec. 7, 2016) (finding that Florida robbery
categorically involves violent force).Because at least
three of his convictions remain violent felonies, Petitioner
is not entitled to relief.