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Rhea v. United States

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

April 18, 2017

FIGEL G. RHEA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER 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 [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.

         I. BACKGROUND

         In 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.

         On July 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].

         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

         The 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 for enhancement.

         1. Propriety of Armed Career Criminal Designation

         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 “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..

         The 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 ...


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