United States District Court, E.D. Tennessee, Greeneville
FIGEL G. RHEA, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RONNIE GREER UNITED STATES DISTRICT JUDGE
the Court is Petitioner's successive motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 [Docs. 79, 84]. 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 filed two responses in opposition, the
first on August 12, 2016 [Doc. 83], and the second on January
17, 2017 [Doc. 90]. Petitioner filed a reply to the latter
response on February 17, 2017 [Doc. 91]. For the reasons that
follow, Petitioner's successive § 2255 petition will
be DENIED and DISMISSED WITH PREJUDICE.
2006, Petitioner pled guilty to possessing ammunition as a
felon, in violation of 18 U.S.C. § 922(g)(1) [Docs. 41,
42, 51]. Based on five prior North Carolina convictions for
breaking and entering, 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) ¶¶ 28, 38-42]. In
accordance with that designation, this Court sentenced
Petitioner to 180 months' imprisonment on March 1, 2007
[Doc. 51]. Petitioner appealed, but the Sixth Circuit
affirmed his conviction and sentence [Doc. 63]. Petitioner
did not seek a writ of certiorari.
8, 2008, Petitioner filed a motion to vacate, correct, or set
aside his sentence under § 2255 [Docs. 65, 66]. This
Court denied and dismissed that petition on the merits on
October 19, 2010 [Docs. 71, 72]. The Supreme Court issued the
Johnson decision on June 26, 2015, and Petitioner
asked the Sixth Circuit for leave to file a successive
petition. On June 27, 2016, Petitioner filed the instant
authorized petition based on the Johnson decision
[Docs. 79, 88].
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).
petition contains a single ground for collateral relief: the
Johnson decision removed North Carolina breaking and
entering from § 924(e)'s definition of
“violent felony” and that, without those
convictions, Petitioner no longer has sufficient predicates
Propriety of Armed Career Criminal Designation
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..
offenses used to designate Petitioner an armed career
criminal were North Carolina convictions for breaking and
entering. Thus, the validity of his sentence depends on
whether North Carolina breaking and entering remains a
“violent felony” 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 ...