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Burton v. United States

United States District Court, E.D. Tennessee

April 12, 2017

CHARLES W. BURTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          LEON JORDAN 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. 252]. 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 March 1, 2017 [Doc. 254]; Petitioner replied in turn on March 28, 2017 [Doc. 255]. Pursuant to Local Rule 7.1(d), Petitioner filed two supplemental briefs, one on March 30, 2017 [Doc. 256], and another on April 4, 2017 [Doc. 257]. For the reasons stated below, Petitioner's successive § 2255 petition will be GRANTED.

         I. BACKGROUND

         Petitioner robbed a pharmacy at gunpoint and then sold the various stolen drugs. United States v. Crozier, 259 F.3d 503, 507-09 (6th Cir. 2001). He was subsequently convicted of conspiring to distribute controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(C); robbing a pharmacy, in violation of 18 U.S.C. § 2118(a); using a firearm during the commission of both the drug conspiracy and the robbery, in violation of 18 U.S.C. § 924(c); and possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Id. at 507.

         Petitioner had several prior Kentucky convictions at the time of his conviction for the instant offense, including: an October 31, 1975 kidnapping [Doc. 254-1]; an October 31, 1975 first-degree burglary [Doc. 254-2]; an October 31, 1975 first-degree robbery [Doc. 254-3]; a 1976 escape; and a 1983 first-degree robbery [Doc. 254-4].[1] Based on three of those offenses-Judge Jarvis, the presiding district judge at the time, determined that all three 1975 offenses arouse “out of one occasion” and thus that only one of those convictions could serve as a predicate violent felony [Doc. 257-2 p. 3 (sentencing transcript)], the United States Probation Office deemed Petitioner to be an armed career criminal subject to the ACCA's fifteen-year statutory minimum [Presentencing Investigation Report (PSR) ¶¶ 57, 58, 61]. In accordance with that designation and in light of Petitioner's contemporaneous convictions for the drug, pharmacy robbery, and § 924(c) offenses, this Court imposed an aggregate sentence of 562 months' imprisonment with an award of 650 days' credit for time served [Doc. 201]. Of that sentence, 256 months were attributable to Petitioner's ACCA-enhanced § 922(g)(1) offense [Doc. 252 p. 13].

         Petitioner appealed and, while the Sixth Circuit affirmed his convictions, it remanded the case for resentencing after concluding that Judge Jarvis improperly awarded Petitioner credit for time served. Crozier, 259 F.3d at 520. The Supreme Court denied Petitioner's request for a writ of certiorari on February 25, 2002. Burton v. United States, 122 S.Ct. 1994 (2002).

         On February 20, 2003, Petitioner filed a § 2255 motion seeking to vacate, set aside, or correct his sentence [Docs. 236]. This Court denied that petition on the merits in a Memorandum Opinion and Judgment Order entered May 23, 2007 [Docs. 242, 243]. The Supreme Court issued the Johnson decision on June 26, 2015. The Sixth Circuit authorized this Court to consider the instant Johnson-based successive petition on January 25, 2017 [Doc. 251].

         II. PETITION FOR COLLATERAL RELIEF

         A. 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).

         B. Analysis

         A felon who possesses a firearm normally faces a maximum penalty of ten years' imprisonment, 18 U.S.C. § 924(a)(2), and three years' supervised release, 18 U.S.C. § 3583(b)(2). If the felon possesses the firearm after having sustained three prior convictions “for a violent felony or serious drug offense, or both, ” the ACCA requires a fifteen year minimum sentence, 18 U.S.C. § 924(e)(1), and increases the maximum supervised release term to five years, 18 U.S.C. § 3583(b)(1). The ACCA defines a “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 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).

         In the Johnson decision, the Supreme Court held “that imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process.” 135 S.Ct. at 2563. The Supreme Court did not automatically invalidate all ACCA sentences, however, emphasizing that its holding “d[id] not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” Id.; see also United States v. Kemmerling, 612 F. App'x 373, 375 (6th Cir. 2015) (explicitly finding that Johnson did not affect the ACCAs use-of-physical-force clause). Thus, under the Johnson decision, an ACCA sentence only raises due process concerns-and is invalid-if it was necessarily based on predicate violent felonies that only qualified as such under the residual clause. Compare United States v. Ozier, 796 F.3d 597, 603 (6th Cir. 2015) (finding district court did not err by categorizing defendant as an armed career criminal where all three predicate offenses qualified under the enumerated-offense and use-of-physical-force clauses of the ACCA), overturned on other grounds by Mathis v. United States, 136 S.Ct. 2246, 2251 n.1 (2016), with United States v. Bell, 612 F. App'x 378, 379-380 (6th Cir. 2015) (finding that the Johnson decision precluded armed career criminal designation where one of three predicate offenses, aggravated assault, failed to qualify under either the enumerated-offense or use-of-physical force clauses).

         For purposes of the instant case, Petitioner makes two interrelated arguments in favor of collateral relief. First, he argues that the law of the case doctrine binds this Court to Judge Jarvis's earlier determination that Petitioner's October 31, 1975 kidnapping, burglary, and robbery offenses arose “out of one occasion” and thus collectively count as a single predicate for purposes of ACCA enhancement [Docs. 252, 255, 257]. Second, he argues that the Johnson decision removed Kentucky escape from § 924(e)'s definition of “violent felony” and that, without that conviction, he lacks sufficient predicates for application of the ACCA's fifteen-year mandatory minimum sentence [Id.]. In response, the United States argues that this Court is not bound by Judge Jarvis' earlier determination, that Petitioner's 1975 offenses occurred on “occasions different from one another” and thus ...


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