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Carter v. United States

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

May 4, 2017

ANTHONY CARTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE

         Before the Court is the United States' motion to deny and dismiss Petitioner's supplemented motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 42]. Petitioner filed the petition on April 22, 2016 [Docs. 31, 38, 39, 43].[1] He challenges his enhancement under Section 2K2.1 of the United States Sentencing Guidelines based on Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual provision of the Armed Career Criminal Act, 18 U.S.C. § 924(e), was unconstitutionally vague [Id. (suggesting that his sentence is no longer valid because the Guidelines residual provision is equally vague)].[2]

         I. BACKGROUND

         On July 23, 2009, law enforcement officers found a firearm, ammunition, four grams of cocaine base (“crack”), a box of plastic baggies, and digital scales inside Petitioner's residence [Doc. 15]. Petitioner subsequently pleaded guilty to possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1), which subjected him to a statutory penalty range of up to ten years' imprisonment under 18 U.S.C. § 924(a)(2) [Presentence Investigation Report (PSR) ¶ 67].

         Based on two prior Tennessee aggravated assault convictions [Id. ¶¶ 33, 38], the United States Probation Office assigned Petitioner an enhanced base offense level under Section 2K2.1(a)(2) of the United States Sentencing Guidelines [Id. ¶¶ 16-17]. A four-level enhancement for possessing the firearm in connection with drug-trafficking [Id. ¶ 18], and three-level reduction for acceptance of responsibility [Id. ¶ 24], yielded a total offense level of twenty-five and an advisory Guideline range of 110 to 120 months' imprisonment [Id. ¶ 68]. This Court imposed a 110-month term of imprisonment [Doc. 24]. Petitioner appealed, but the Sixth Circuit 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). It was this third clause-the residual clause-that the Supreme Court deemed unconstitutional in Johnson. 135 S.Ct. at 2563.

         The Guidelines set a general base offense level of fourteen for violating 18 U.S.C. § 922(g). U.S. Sentencing Manual § 2K2.1(a)(6). For offenders with one prior conviction for either a “crime of violence” or “controlled substance offense, ” the base offense level increases to twenty. U.S. Sentencing Manual § 2K2.1(a)(4). Offenders with two such convictions face a base offense level of twenty-four. U.S. Sentencing Manual § 2K2.1(a)(2). “Controlled substance offense” is defined as any offense “punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” U.S. Sentencing Manual § 4B1.2(b). “Crime of violence” is defined in an almost identical manner as “violent felony” under the ACCA. See U.S. Sentencing Manual §4B1.2(a) (adopting identical use-of-force and residual clauses and similar enumerated-offense clause). affirmed his conviction and sentence on September 7, 2011 [Doc. 29]. He did not seek a writ of certiorari.

         The United States Supreme Court decided Johnson on June 26, 2015. Less than one year later, on April 22, 2016, Petitioner field the instant request for relief based on that decision [Doc. 31]. CJA counsel filed a supplement in support of Johnson-based relief [Docs. 38, 39].

         On March 6, 2017, the Supreme Court issued Beckles v. United States, which held that the United States Sentencing Guidelines are “not amenable to vagueness challenges.” 137 S.Ct. 886, 894 (2017). Shortly thereafter, on March 30, 2017, the United States filed the instant motion to dismiss Petitioner's Johnson-based challenge in light of Beckles [Doc. 42]. In response, CJA counsel argues that Beckles does not preclude relief because (1) Petitioner's 2001 Class C aggravated assault no longer qualifies as a crime of violence because it is capable of commission without violent physical force; and (2) Petitioner's 2009 Class D aggravated assault no longer qualifies as a crime of violence because the Sixth Circuit held in McMurray v. United States, 653 F.3d 367 (2011), that the use-of-physical-force clause requires intentional or knowing conduct [Doc. 43].

         II. TIMELINESS OF SUPPLEMENTED PETITION

         Section 2255(f) places a one-year statute of limitations on all petitions for collateral relief under § 2255 running from either: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). This same provision governs the timeliness of later-filed amendments. Cameron v. United States, No. 1:05-cv-264, 2012 WL 1150490, at *3-6 (E.D. Tenn. April 5, 2012) (citing Olsen v. United States, 27 F. App'x 566 (6th Cir. Dec. 14, 2001)). Petitioner has failed to demonstrate that subsections (f)(2) or (f)(4) apply to his case, i.e., he has not established that any illegal action by the government prevented him timely filing the petition or the existence of facts affecting his case that could not have previously been discovered through the exercise of due diligence. As such, timeliness of the supplemented petition depends on whether submission of the grounds for relief therein complied with subsections (f)(1) and (f)(3).

         A. Timeliness of Supplemented Petition Under Subsections (f)(1) and (f)(3)

         For purposes of the subsection (f)(1)-where the statutory period expires one year from the date on which the judgment of conviction becomes final-a “conviction becomes final at the conclusion of direct review.” Brown v. United States, 20 F. App'x 373, 374 (6th Cir. 2001) (quoting Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001)). Where a defendant pursues direct review via a petition for certiorari in the United States Supreme Court, direct review concludes when the Supreme Court either denies the petition for certiorari or decides the case. Clay v. United States, 537 U.S. 522, 532 (2003). In the alternative, when a defendant pursues a direct appeal but does not petition the United States Supreme Court for certiorari, his judgment becomes final when the time expires for filing such petition-ninety days after entry of the intermediate appellate court's judgment. Id.; see also Supreme Court Rule 13(3) (“The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate.”). Petitioner's conviction became final for purposes of subsection (f)(1) ninety days after the Sixth Circuit affirmed his conviction and sentence-on December 6, 2011. The window for requesting timely relief under subsection (f)(1) expired one year later-on December 6, 2012, three and a half years before submission of the instant petition for collateral relief [Docs. 31, 38, 39, 43].

         To the extent Petitioner relies on subsection (f)(3)'s independent one-year filing period for newly-recognized rights made retroactively applicable on collateral review as justification for submitting the petition and supplements after December 6, 2012, only his challenge based Johnson even arguably satisfies the conditions required to trigger that provision. See 28 U.S.C. § 2255(f)(3) (requiring reliance on a newly recognized and retroactively applicable right); see also Welch v. United States, 136 S.Ct. 1257, 1265 (2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers § 2255(h)(2)'s requirement for certification of a second or successive petition). McMurray cannot trigger subsection (f)(3) because it is a Court of Appeals decision and Petitioner did not challenge his reckless aggravated assault conviction within one year of Begay v. United States, 553 U.S. 137 (2008).

         B. Equitable Tolling of ...


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