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Phillips v. United States

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

April 10, 2017

GERALD W. PHILLIPS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Magistrate Judge, Susan K. Lee

          MEMORANDUM OPINION

          TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 270.)[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 agrees Petitioner is entitled a reduction in sentence with regard to his conviction under 18 U.S.C. § 922(g) but argues that the aggregate sentence should remain the same in light of his independent conviction and sentence for several other offenses. (Doc. 273.) 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 stated below, the motion to vacate will be GRANTED so far as it seeks Johnson-based relief from ACCA enhancement; the Court will order a full resentencing hearing as soon as reasonably practicable.

         I. BACKGROUND

         In 2004, Petitioner and a companion robbed a post office at gunpoint, barricaded the postal clerk in the bathroom, cut the phone lines, and ultimately left with more than $1, 500.00 in cash, checks, and stamp stocks, as well as a money order imprinter, and 215 bank money orders. (Presentence Investigation Report (“PSR”) at ¶¶ 21-24.) Petitioner used the imprinter to print at least 173 money orders with a face value of $41, 866.35; of those, money orders totaling $37, 791.35 were cashed at Petitioner's direction (Id. at ¶¶ 36, 39-40, 42-45.) As a result, the United States charged Petitioner with several offenses, and, while awaiting trial, he escaped from custody. (Id. at ¶ 48.)[2]

         In 2005, a jury convicted Petitioner of armed postal robbery, in violation of 18 U.S.C. § 2114(a); brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c), possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g); theft of a postal money order machine, in violation of 18 U.S.C. § 500, and conspiracy to commit an offense against the United States, namely, using a stolen money order imprinter to pass stolen postal money orders, in violation of 18 U.S.C. § 371. (Docs. 199, 231.) Based on six prior convictions-five for escape and one for postal burglary, the United States Probation Office deemed Petitioner an armed career criminal subject to that provision's fifteen-year mandatory minimum sentence and career offender under Section 4B1.1 of the United States Sentencing Guidelines, with a corresponding Guideline range of 360 months to life imprisonment. (PSR at ¶¶ 77-78, 88, 93, 96, 100, 101, 105, 119.) In accordance with that designation, this Court sentenced Petitioner to an aggregate term of 360 months' incarceration-concurrent 276-month terms for both the § 2114(a) and § 922(g) offenses, concurrent 60-month terms for the § 500 and § 371 offenses, and a consecutive 84-month term for the § 924(c) offense. (Doc. 231.) Petitioner did not appeal and, as a result, his conviction became final for purpose of § 2255(f)(1) on February 17, 2006, at expiration of the time to file the same. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (explaining that an unappealed judgment of conviction becomes final when the period for filing the same elapses).

         Petitioner filed the instant § 2255 petition on June 16, 2016, alleging he is no longer an armed career criminal or career offender in light of the Johnson decision. (Doc. 270.) Agreeing in part, the United States responded by urging the Court to amend Petitioner's sentence for the § 922(g) offense but to leave his aggregate 360-month sentence unaltered. (Doc. 273.)

         II. TIMELINESS OF PETITION

         Section 2255(f) places a one-year statute of limitations on all petitions for collateral relief under § 2255 running from either: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). Supreme Court precedent makes clear that Johnson's invalidation of the ACCA residual clause amounted to a new rule made retroactively applicable on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1265 (U.S. 2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers § 2255(h)(2)'s requirement for certification of a second or successive petition). Petitioner submitted the instant petition for Johnson-based relief within subsection (f)(3)'s window.

         III. 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).

         IV. ANALYSIS

         The petition contains two grounds for collateral relief: Petitioner argues that the Johnson decision (1) removed his prior escape convictions from the definition of “violent felony” in § 924(e) and that, without those convictions, he lacks sufficient predicates for ACCA enhancement; and (2) removed his prior escape convictions from the definition of “crimes of violence” in Section 4B1.2 of the United States ...


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