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Davis v. United States

United States District Court, E.D. Tennessee

April 17, 2017



          Leon Jordan 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. 48].[1] He bases the request 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 [Docs. 52, 53]; Petitioner replied in turn [Doc. 54]. For the reasons that follow, the § 2255 petition will be GRANTED.


         In 2001, Petitioner pled guilty to, and was subsequently convicted of, possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g) [Doc. 28]. Based on three prior aggravated assault convictions-two under Tennessee's old statute and one under Tennessee's current version of the same, the United States Probation Office deemed Petitioner to be an armed career criminal subject to the ACCA's fifteen-year term of imprisonment [Presentence Investigation Report (PSR) ¶¶ 18, 25, 27, 28]. In accordance with that designation, this Court sentenced Petitioner to 180 months' imprisonment [Doc. 28]. Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence on December 11, 2002. United States v. Davis, 52 F. App'x 738 (6th Cir. 2002).

         On October 7, 2004, Petitioner filed a pro se motion to “correct sentence” [Doc. 37]. This Court denied that motion in a Memorandum and Order entered on October 20, 2004 [Doc. 38]. The Supreme Court issued the Johnson decision on June 26, 2015. On July 27, 2016, this Court received what it believed to be a successive petition [Doc. 42]. In accordance with that belief, it transferred the filing to the Sixth Circuit for authorization [Docs. 45, 46]. On December 12, 2016, the Sixth Circuit ruled that the instant motion was actually Petitioner's first § 2255 petition and, as such, no authorization was required [Doc. 47]. It returned the filing to this Court [Doc. 48].


         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).

         III. ANALYSIS

         The petition contains a single ground for collateral relief, arguing that Petitioner's convictions under the old Tennessee's aggravated assault statute no longer qualify as “violent felonies” under § 924(e) after the Johnson decision and that, without those convictions, Petitioner does not qualify for ACCA enhancement [Doc. 48 (challenging status of his aggravated assaults)].

         A. Propriety of Armed Career Criminal Designation After the Johnson Decision

         The 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). Only the third portion of the above definition-the residual clause-was held to be unconstitutionally vague by the Supreme Court in the Johnson decision. 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 prior serious drug offenses 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 a defendant's categorization as an armed career criminal based on his or her prior serious drug offenses).

         Petitioner does not dispute that his conviction for aggravated assault under Tennessee's current statute remains a violent felony under the use-of-physical-force clause. As such, the sole dispute between the parties is whether or not Petitioner's 1991 and 1992 aggravated assault offenses remain “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 convictions qualified as a predicates independent of the residual clause), overturned on other grounds by Mathis v. United States, 136 S.Ct. 2246, 2251 n.1 (2016). It appears that at least one does not.

         At the time Petitioner committed the relevant offenses, Tennessee defined aggravated assault as follows:

         (a) A person commits aggravated assault who:

         (1) Commits an assault as defined in § 39-13-101 and;

         (B) Uses or displays a deadly weapon; or

(2) Being the parent or custodian of a child or the custodian of an adult, intentionally or knowingly fails or refuses to protect such child or adult from an aggravated assault as defined in subdivision (a).

         (3) After having been enjoined or restrained by an order, diversion or probation agreement of a court of competent jurisdiction from in any way causing or attempting to cause bodily injury or in any way committing or attempting to commit an assault against an individual or individuals, attempts to cause or causes bodily ...

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