United States District Court, E.D. Tennessee, Knoxville
JOHN I. CHISOM, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Jordan 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 [Doc. 87], and expedited motion for a ruling on
the same [Doc. 89]. Petitioner bases his request for relief on
the United States Supreme Court case Johnson v. United
States, 135 S.Ct. 2551 (2015), which held that the
residual clause of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e), was unconstitutionally vague [Docs. 87,
89]. The United States agrees that Petitioner is entitled to
relief [Doc. 91], and both parties urge that this Court grant
Petitioner immediate release [Docs. 89, 91]. For the reasons
stated below, the motions [Docs. 87, 89] will be GRANTED.
2006, a jury convicted Petitioner of possessing a firearm and
ammunition as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) [Doc. 56]. Based on Petitioner's prior
California convictions for three robberies and one assault
with a firearm, 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) ¶¶ 21, 27]. In
accordance with that designation, this Court imposed a
200-month sentence on October 23, 2006 [Doc. 64]. Petitioner
appealed, but the Sixth Circuit affirmed his conviction and
sentence. See generally United States v. Chisom, 249
F. App'x 406 (6th Cir. 2007).
April 13, 2009, Petitioner filed a motion to vacate, set
aside, or correct his sentence under § 2255 [Doc. 73].
This Court denied that petition on the merits in a Memorandum
Opinion and Judgment Order entered on March 28, 2013 [Docs.
78, 79]. The Supreme Court decided Johnson on June
26, 2015, after which Petitioner requested leave to file a
successive motion. On April 20, 2017, the Sixth Circuit
authorized Petitioner to litigate a second § 2255
petition based on Johnson [Docs. 86, 87]. The United
States has responded in support of relief [Doc. 91].
STANDARD OF REVIEW
obtain relief under 28 U.S.C. § 2255, 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).
who possesses a firearm normally faces a maximum penalty of
ten years' imprisonment, 18 U.S.C. § 924(a)(2), and
three years' supervised release, 18 U.S.C. §
3583(b)(2). If the felon possesses the firearm after having
sustained three prior convictions “for a violent felony
or serious drug offense, or both, ” the ACCA requires a
fifteen year minimum sentence, 18 U.S.C. § 924(e)(1),
and increases the maximum term of supervised release to five
years, 18 U.S.C. § 3583(b)(1). The ACCA defines a
“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 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. §
Johnson, the Supreme Court held “that imposing
an increased sentence under the residual clause of the [ACCA]
violates the Constitution's guarantee of due
process.” 135 S.Ct. at 2563. The Supreme Court did not
automatically invalidate all ACCA sentences, however,
emphasizing that its holding “d[id] not call into
question application of the Act to the four enumerated
offenses, or the remainder of the Act's definition of a
violent felony.” Id.; see also United
States v. Kemmerling, 612 F. App'x 373, 375 (6th
Cir. 2015) (explicitly finding that Johnson did not
affect the ACCAs use-of-physical-force clause). Thus, under
Johnson, an ACCA sentence only raises due process
concerns-and is invalid-if it was necessarily based on
predicate violent felonies that only qualified as such under
the residual clause. Compare United States v. Ozier,
796 F.3d 597, 603 (6th Cir. 2015) (finding district court did
not err by categorizing defendant as an armed career criminal
where all three predicate offenses qualified under the
enumerated-offense and use-of-physical-force clauses of the
ACCA), overturned on other grounds by Mathis v. United
States, 136 S.Ct. 2246, 2251 n.1 (2016), with United
States v. Bell, 612 F. App'x 378, 379-380 (6th Cir.
2015) (finding that the Johnson decision precluded
armed career criminal designation where one of three
predicate offenses, aggravated assault, failed to qualify
under either the enumerated-offense or use-of-physical force
three of the four convictions used to designate Petitioner an
armed career criminal- his convictions for robbery under
California Penal Code § 211, no longer qualify as
violent felonies because they neither have as an element the
intentional or knowing use, attempted use, or threatened use
of violent force against another, see Untied States v.
Barnett, 540 F. App'x 532, 536-37 (6th Cir. 2013)
(citing Descamps and explaining a statute only meets
the first subcategory of violent felony under the ACCA where
violations categorically require the use or attempted use of
violent physical force); see also Dixon v. United
States, 805 F.3d 1193, 1197 (9th Cir. 2015)
(“[T]he California Supreme Court clarified that one may
violate CPC § 211 by accidently using force.”
(citing People v. Anderson, 252 P.3d 968, 972 (Cal.
2011)), nor fall within one of the enumerated categories of
violent felony listed in § 924(e)(2)(B)(ii), see
Id. at 1195 n. 5 (“A state statute may also
categorically match the ACCA's definition of
‘violent felony' if it ‘is burglary, arson,
or . . . involves use of explosives' . . . . [but] [w]e
set these provisions aside, as they do not, in the ordinary
case, apply to the conduct proscribed by [California Penal
Code] § 211.”). His convictions under California
Penal Code § 211 only categorically qualified as violent
felonies under the now-defunct residual provision. Accord
Id. at 1199 (deeming the statue indivisible). As a
result, Petitioner's 200-month term of imprisonment and
five years' supervised release [Doc. 64] exceed his
maximum authorized sentence as a non-ACCA offender by 80
months' incarceration and two years' supervised
release. See 18 U.S.C. § 924(a)(2)
(“Whoever knowingly violates subsection . . . (g) . . .
of section 922 shall be . . . imprisoned not more than [ten]
§ 2255 claim has merit, district courts have the
discretion to choose between discharging the petitioner,
resentencing the petitioner, correcting the petitioner's
sentence, or granting the petitioner a new trial. 28 U.S.C.
§ 2255(b). Because Petitioner has already served more
than 120 months in prison-the maximum sentence allowed under
§ 924(a)(2), correction of sentence is the most
appropriate form of relief. United States v.
Torres-Otero, 232 F.3d 24, 30 (1st Cir. 2000)
(“[I]n cases were the sentence (but not the conviction)
is infirm, only the ‘resentenc[ing]' or
‘correct[ing] the sentence' options are open to the
district court, since a prisoner should never be
‘discharge[d]' or ‘grant[ed] a new trial'
based solely on a defective sentence.”).
has already served in excess of the ten-year custodial
maximum applicable to him after Johnson. For this
reason, Petitioner successive § 2255 motion [Doc. 87]
and request for an expedited ruling on the same [Doc. 89]
will be GRANTED and his sentence will be reduced to a term of
“time served.” The accompanying Order will take
effect ten days from its entry in order to give the Bureau of
Prisons time to process release. Further, the judgment dated
October 23, 2006 [Doc. 64] will be AMENDED to ...