United States District Court, E.D. Tennessee, Knoxville
TIMOTHY A. WEBB, Petitioner,
UNITED STATES OF AMERICA, Respondent.
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's successive pro se motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 [Docs. 34]. 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 on
January 25, 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 that follow, the successive pro se petition
will be DENIED and DISMISSED WITH PREJUDICE.
2007, Petitioner pled guilty to possessing ammunition as a
felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 16].
Based on three prior Tennessee convictions-two for Class D
burglary and one for aggravated assault, 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) ¶¶
26, 30, 31; Docs. 36-1, 36-2, 36-3, 36-4]. Consistent with
that designation, this Court sentenced Petitioner to 180
months' imprisonment on April 18, 2008 [Doc. 20].
Petitioner did not appeal his conviction or sentence, but
instead filed a motion to vacate, set aside, or correct under
28 U.S.C. § 2255 [Doc. 22]. This court denied that
motion on the merits in a Memorandum Opinion and Judgment
Order entered on September 20, 2011 [Docs. 27, 28].
Supreme Court issued the Johnson decision on June
26, 2015, and Petitioner requested leave to file a successive
petition based on that decision. On December 28, 2016, this
Court received the instant challenge to Petitioner's ACCA
designation in light of the Johnson decision [Doc.
34]. The Sixth Circuit has authorized consideration of the
successive filing [Doc. 33].
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 a particular offense qualifies as a violent felony
under any of the prongs of the above definition, courts must
first identify the precise crime of conviction. Descamps
v. United States, 133 S.Ct. 2276, 2285 (2013). They do
so by employing a “categorical approach, ” under
which they looks “only to the statutory
definitions-elements-of a defendant's prior offense, and
not to the particular facts underlying [each individual]
conviction.” Id. at 2283. When the
conviction involves violation of a “divisible”
statute-one which comprises multiple, alternative versions of
the crime-courts resort to the “modified categorical
approach” under which they “consult[s] a limited
class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis
of the defendant's prior conviction.” Id.
Court finds that all three of the 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 a result, it finds that no collateral
relief is warranted.
initial matter, the Court notes that two of the three
convictions designated as predicate offenses supporting ACCA
enhancement were Tennessee convictions for Class D burglary
[PSR ¶¶ 26, 30; Docs. 36-1, 36-2]. Binding Sixth
Circuit precedent makes clear that both offenses remain
predicates after the Johnson decision under the
enumerated-offense clause. See United States v.
Priddy, 808 F.3d 676, 685 (6th Cir. 2015) (finding that
post-1989 Tennessee Class D burglary is categorically a
violent felony under the ACCA's enumerated-offense
time Petitioner committed his aggravated assault offense [PSR
¶ 31], ...