United States District Court, E.D. Tennessee
Jordan United States District Judge
the Court is Petitioner's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 [Doc.
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
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).
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].
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).
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)].
Propriety of Armed Career Criminal Designation After 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).
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.
time Petitioner committed the relevant offenses, Tennessee
defined aggravated assault as follows:
person commits aggravated assault who:
Commits an assault as defined in § 39-13-101 and;
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).
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 ...