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Mitchell v. United States

United States District Court, W.D. Tennessee, Western Division

July 5, 2017

STEPHEN MURRAY MITCHELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Cr. No. 99-20272

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE.

         Before the Court is Stephen Murray Mitchell's pro se second or successive motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (the “Johnson § 2255 Motion”). (17-02341: ECF No. 1-1 at 3.[1]) Mitchell challenges his sentence in Criminal Case No. 99-20272, [2] seeking relief under Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson”). The United States (the “Government”) has responded. (17-02341: ECF No. 6 at 22.) Mitchell has replied. (17-02341: ECF No. 7 at 69.) With leave of Court, Mitchell filed a supplemental reply. (17-02341: ECF No. 8 at 96; see ECF No. 8-3 at 102.)

         Also before the Court in Case No. 17-02341 are the following motions: (1) Mitchell's “Motion for Disclosure & Discovery” (the “17-02341 Motion for Discovery”); (2) Mitchell's “Motion to Dismiss for Failure to State a Claim Under Fed. Civ/Crm. R. 12(b)(6)” (the “17-02341 First Motion to Dismiss”); (3) Mitchell's “Motion for Dismissal of Action” (the “17-02341 Second Motion to Dismiss”); (4) Mitchell's “Motion to Modify the Record” (the “17-02341 Motion to Modify”); and (5) Mitchell's “Motion to Appoint Special Master, & Motion to Appoint Special Prosecutor, to Address Pretrial & Postrial Matters that Cannot Be Effectively & Timely Addressed by Judge Samuel H. Mays, Jr.; and to Investigate & Prosecute Criminal Conduct Surrounding the Arrest & Prosecution of Petitioner Stephen Murray Mitchell, Pursuant to 28 U.S.C.S. §§ 593 & 626” (the “17-02341 Motion to Appoint”). (17-02341: ECF No. 9 at 103; ECF No. 10 at 105; ECF No. 11 at 109; ECF No. 12 at 140; ECF No. 13 at 143.)[3]

         Also before the Court in Case No. 99-20272 are the following motions: (1) Mitchell's “Motion to Dismiss Judgment No. 99-20272” (the “99-20272 First Motion to Dismiss”); (2) Mitchell's “Motion for Leave to Amend Pleading in Order to Request Time Served” (the “99-20272 Motion to Amend”); (3) Mitchell's “Motion Under Fed. Crim. Rule 36” (the “99-20272 Motion Under Rule 36”); (4) Mitchell's “Motion for Bond Pending Sentence, and in the Alternative, Motion for Emergency Sentence Hearing” (the “99-20272 First Motion for Hearing”); (5) Mitchell's “Motion to Dismiss for Failure to State a Claim Under Fed. Civ/Crm. R. 12(b)(6)” (the “99-20272 Second Motion to Dismiss”); (6) Mitchell's “Motion for Dismissal of Action” (the “99-20272 Third Motion to Dismiss”); and (7) Mitchell's “Motion for Bond Pending Sentence, and in the Alternative, Motion for Emergency Sentence Hearing” (the “99-20272 Second Motion for Hearing”). (99-20272: ECF No. 205 at 121; ECF No. 206 at 274; ECF No. 209 at 358; ECF No. 211 at 378; ECF No. 213 at 386; ECF No. 214 at 391; ECF No. 215 at 422.)

         For the following reasons, the Johnson § 2255 Motion is GRANTED. The 17-02341 Motion to Modify and the 17-02341 Motion to Appoint are DENIED. The 17-02341 Motion for Discovery, the 17-02341 First Motion to Dismiss, the 17-02341 Second Motion to Dismiss, the 99-20272 First Motion to Dismiss, the 99-20272 Motion to Amend, the 99-20272 Motion Under Rule 36, the 99-20272 First Motion for Hearing, the 99-20272 Second Motion to Dismiss, the 99-20272 Third Motion to Dismiss, and the 99-20272 Second Motion for Hearing are DENIED as moot.

         I. Background

         A. Case No. 99-20272

         Following a jury trial, on December 15, 2000, Mitchell was convicted of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). (99-20272: ECF No. 124 at 74; ECF No. 143 at 83.)

         On January 30, 2001, the United States Probation Office prepared a Presentence Investigation Report (the “PSR”). (PSR at 1.) The PSR calculated Mitchell's guidelines sentencing range pursuant to the 2000 edition of the United States Sentencing Commission Guidelines Manual (the “U.S.S.G.”). (Id. ¶ 11 at 5.)

         Mitchell was designated an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”). (Id. ¶ 19 at 6.) The PSR identified at least five ACCA-predicate convictions in Mitchell's criminal history. (Id. ¶¶ 29-31, 35-36 at 9-11, 13-14.) Mitchell's guidelines range was 235-293 months in prison. (Id. ¶ 72 at 26.) Mitchell's statutory minimum sentence was 180 months. (Id. ¶ 71 at 26 (citing 18 U.S.C. § 924(e)).)

         On July 26, 2001, the Court sentenced Mitchell to 250 months in prison, followed by three years' supervised release. (99-20272: ECF No. 142.) Judgment was entered on August 1, 2001. (99-20272: ECF No. 143 at 83.)

         Mitchell appealed, and the Court of Appeals for the Sixth Circuit affirmed on October 21, 2002. United States v. Mitchell, 48 F. App'x 955 (6th Cir. 2002).

         B. Case No. 03-02753

         On October 8, 2003, Mitchell filed a motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (03-02753: ECF No. 1.[4]) On March 25, 2005, the Court denied Mitchell's § 2255 motion. (03-02753: ECF No. 13 at 12.) Among other grounds, Mitchell contended that his sentence exceeded the statutory maximum. (See Id. at 3.) The Court rejected that argument, finding that Mitchell's claim was procedurally defaulted. (Id. at 11-12.) Mitchell filed a motion for reconsideration, which was denied on May 17, 2005. (03-02753: ECF No. 16 at 17.) Following entry of judgment, Mitchell filed a notice of appeal, and the Court of Appeals denied a certificate of appealability on February 21, 2006. Mitchell v. United States, No. 05-6005 (6th Cir. Feb. 21, 2006), cert. denied, 549 U.S. 1012 (2006).

         C. Case No. 08-02528

         On August 6, 2008, Mitchell filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (08-02528: ECF No. 1 at 1.[5]) On March 11, 2009, the Court denied Mitchell's § 2241 petition. (08-02528: ECF No. 4 at 57.) Among other grounds, Mitchell challenged his armed-career-criminal designation and his status as a convicted felon at the time of the indictment in Criminal Case No. 99-20272. (Id. at 60.) The Court rejected Mitchell's claims because, inter alia, (1) they were not claims properly raised in a § 2241 petition and (2) Mitchell made no valid argument that he was actually innocent of his 18 U.S.C. § 922(g) offense. (Id. at 63-64.) Following entry of judgment, Mitchell appealed, and the Court of Appeals affirmed the judgment on January 26, 2010. Mitchell v. Castillo, No. 09-5545 (6th Cir. Jan. 26, 2010), cert. denied, 562 U.S. 807 (2010).

         D. Case No. 10-02958

         On December 30, 2010, Mitchell filed a “Pro Se Motion to Nullify Order for Want of Jurisdiction, ” docketed as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (10-02958: ECF No. 1 at 1.[6]) On May 27, 2011, the Court denied Mitchell's § 2241 petition. (10-02958: ECF No. 9 at 59.) Among other grounds, Mitchell argued that he was erroneously sentenced as an armed-career-criminal because three of the prior Tennessee burglary convictions on which the sentencing court had relied did not qualify as ACCA predicates. (10-02958: ECF No. 8 at 33.)

         The Court rejected Mitchell's claims because (1) they were not claims properly raised in a § 2241 petition and (2) Mitchell made no valid argument that he was actually innocent of his 18 U.S.C. § 922(g) offense. (10-02958: ECF No. 9 at 55-56.) As an alternative basis for its decision, the Court opined that Mitchell had been sentenced properly as an armed career criminal. (Id. at 56.) The Court opined that Mitchell's two Tennessee convictions for burglary of a building were properly counted as predicate offenses. (Id. at 58-59.) The Court also opined that Mitchell's Tennessee third degree burglary conviction was properly counted, explaining:

Under the law at the time, “[b]urglary in the third degree is the breaking and entering into a business house, outhouse, or any other house of another, other than dwelling house, with the intent to commit a felony.” Tenn. Code Ann. § 39-3-404(a)(1) (1986). That definition is similar to the definition of burglary of a building and is, for the same reasons, a generic burglary capable of constituting a violent felony under the ACCA.

(Id. at 59.)

         Following entry of judgment, Mitchell moved for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure, which the Court denied. (10-02958: ECF No. 15 at 136.) Mitchell appealed the judgment, and the Court of Appeals affirmed on January 26, 2010, deciding that Mitchell's claims were not properly raised in a § 2241 petition. Mitchell v. United States, No. 11-5790 (6th Cir. Oct. 12, 2012), cert. denied, 133 S.Ct. 2010 (2013). The Supreme Court's order denying certiorari stated, “As petitioner has repeatedly abused this Court's process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and petition submitted in compliance with Rule 33.1.” Mitchell, 133 S.Ct. at 2010.

         E. Case No. 12-02930

         On October 23, 2012, Mitchell filed a “Motion Under 28 U.S.C. § 1331” seeking to “nullify” his judgment in Criminal Case. No. 99-20272.[7] (12-02930: ECF No. 1 at 1.[8]) Mitchell moved to amend his motion to request that his sentence be corrected to time served under Rule 35(a) of the Federal Rules of Criminal Procedure. (12-02930: ECF No. 9 at 99.) Mitchell sought relief under Rule 35(a) on the ground that five of the prior Tennessee convictions on which the sentencing court had relied in sentencing Mitchell as an armed career criminal -- his three burglary convictions and two aggravated assault convictions -- did not qualify as ACCA predicates.[9] (Id. at 99-100.)

         On January 2, 2014, the Court denied Mitchell's “Motion Under 28 U.S.C. § 1331” as amended. (12-02930: ECF No. 10 at 144-45.) The Court decided that Mitchell's claims were not properly raised. (Id.) Following entry of judgment, Mitchell moved for reconsideration, which the Court denied. (12-02930: ECF No. 15 at 166.) Mitchell appealed the judgment, and the Court of Appeals affirmed on April 2, 2015, agreeing that Mitchell's claims were not properly raised.[10] Mitchell v. United States, No. 14-5103 (6th Cir. Apr. 2, 2015).

         F. Case No. 13-02412

         On June 12, 2013, Mitchell filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (13-02412: ECF No. 1 at 1.[11]) Mitchell argued that the aggravated assault convictions on which the sentencing court had relied in sentencing him as an armed career criminal no longer qualified as ACCA predicates following intervening Supreme Court and Sixth Circuit authority. (Id. at 3-4.) The Court denied the motion on July 10, 2013. (13-02412: ECF No. 3 at 54-55.) The Court decided that Mitchell's claims under § 2241 were not properly raised. (Id. at 54.) The Court explained that, even without the two aggravated assault convictions, Mitchell “would still have three convictions for violent felonies, which are, by themselves, sufficient to qualify him as an armed career criminal.” (Id. at 54-55.)

         Following entry of judgment, on July 15, 2013, Mitchell filed a Motion for Leave for Supplemental Pleading, raising new arguments based on Descamps v. United States, 133 S.Ct. 2276 (2013). (13-02412: ECF No. 5 at 58.) The Court denied the motion because it was not timely and because Mitchell's new arguments and authority did not undermine the Court's conclusion that Mitchell's claims were not properly raised in a § 2241 petition. (13-02412: ECF No. 6 at 63.) Mitchell did not appeal the judgment.

         G. Case No. 13-5977

         On July 23, 2013, Mitchell moved the Court of Appeals for an order authorizing this Court to consider a second or successive motion under 28 U.S.C. § 2255. Mitchell challenged his armed-career-criminal status, arguing that, after the Supreme Court's decision in Begay v. United States, 553 U.S. 137 (2008), Mitchell's aggravated assault convictions no longer qualified as ACCA predicates and that, after the Supreme Court's decision in Descamps, Mitchell's burglary convictions no longer qualified. The Court of Appeals denied the motion, explaining that Mitchell had not “establish[ed] a prima facie showing because the Supreme Court ha[d] not made Begay or Descamps retroactive on collateral review.” In re Mitchell, No. 13-5977, slip op. at 2 (6th Cir. Jan. 15, 2014).

         H. Subsequent Proceedings

         On July 23, 2015, Mitchell filed a “Writ of Habeas Corpus Under 28 U.S.C. § 2241 and/or Writ of Scire Facias Under 28 U.S.C. § 1367(a), ” which was docketed in Case No. 15-02485. (15-02485: ECF No. 1 at 1.) On November 4, 2015, Mitchell filed a “Motion to Withdraw 28 U.S.C. § 2241 Petition.” (15-02485: ECF No. 6 at 54.) The Court granted the motion, dismissed Case No. 15-02485, and entered judgment. (15-02485: ECF No. 7 at 56; ECF No. 8 at 57.)

         On October 23, 2015, Shortly before filing his motion to withdraw, Mitchell again moved the Court of Appeals for an order authorizing this Court to consider a second or successive motion under 28 U.S.C. § 2255. Mitchell sought to challenge his ACCA-enhanced sentence under Johnson. The Court of Appeals granted the motion on June 23, 2016, explaining, “Because the Supreme Court has held that Johnson announced a new substantive rule of constitutional law that is categorically retroactive to cases on collateral review, Welch v. United States, 136 S.Ct. 1257, 1268 (2016), Mitchell has made a prima facie showing that he is entitled to relief.” In re Mitchell, No. 15-6178, slip op. at 1 (6th Cir. June 23, 2016).

         Subsequent filings related to Mitchell's Johnson challenge were docketed in Case No. 15-02485. On August 5, 2016, this Court ordered the Government to respond to Mitchell's Johnson challenge. (15-02485: ECF No. 10 at 58.) The Government responded on August 22, 2016, contending that Mitchell is not entitled to relief under Johnson. (15-02485: ECF No. 14 at 69.) On August 29, 2016, Mitchell filed a “Traverse Under 28 U.S.C. § 2248, ” which the Court construes as a reply. (15-02485: ECF No. 15 at 116.) On August 30, 2016, Mitchell filed a “Motion to Amend Traverse Under 28 U.S.C. § 2255, ” which the Court granted and construes as a supplemental reply. (15-02485: ECF No. 16 at 143; ECF No. 19 at 155.) The Government's response, Mitchell's reply, and Mitchell's supplemental reply subsequently were docketed in Case No. 17-02341. (17-02341: ECF No. 6 at 22; ECF No. 7 at 69; ECF No. 8 at 96.)

         Mitchell filed several motions in Case No. 15-02485 that subsequently were docketed in Case No. 17-02341. Originally filed on September 1, 2016, Mitchell's 17-02341 Motion for Discovery seeks a court order directing the Assistant United States Attorney to disclose to Mitchell records related to an “October 19, 1999, driving while license was suspended crime/charge, Shelby County Case No. 99155572.” (15-02485: ECF No. 17 at 149; 17-02341: ECF No. 9 at 103.) Originally filed on September 1, 2016, Mitchell's 17-02341 First Motion to Dismiss asks the Court to dismiss the judgment in Criminal Case No. 99-20272 under “Fed. Civ/Crm. R. 12(b)(6).” (15-02485: ECF No. 18 at 151; 17-02341: ECF No. 10 at 105.) Originally filed on October 19, 2016, Mitchell's 17-02341 Second Motion to Dismiss asks the Court to dismiss the judgment in Criminal Case No. 99-20272 on the ground that the Court may not rely on the records of Mitchell's prior convictions provided by the Government for purposes of the Court's assessment of Mitchell's Johnson challenge. (15-02485: ECF No. 20 at 156; 17-02341: ECF No. 11 at 109.) Originally filed on May 25, 2017, Mitchell's 17-02341 Motion to Modify is a motion directed to the Court of Appeals related to a petition for writ of mandamus Mitchell filed in that court on May 15, 2017. (15-02485: ECF No. 26 at 305; 17-02341: ECF No. 12 at 140.)

         Mitchell has filed the following motions in Case No. 99-20272. On July 18, 2016, Mitchell filed the 99-20272 First Motion for Hearing. (99-20272: ECF No. 211 at 380.) In that motion, Mitchell seeks to be released on bond pending the Court's ruling on the Johnson § 2255 Motion and, in the alternative, an “emergency sentence hearing” for the adjudication of Mitchell's Johnson challenge. (Id.) On September 1, 2016, Mitchell filed the 99-20272 Second Motion to Dismiss. (99-20272: ECF No. 213 at 386.) In that motion, Mitchell seeks substantially the same relief he seeks in the 17-02341 First Motion to Dismiss. (Id.) On October 19, 2016, Mitchell filed the 99-20272 Third Motion to Dismiss. (99-20272: ECF No. 214 at 391.) In that motion, Mitchell seeks substantially the same relief as he seeks in the 17-02341 Second Motion to Dismiss. (Id.) On February 22, 2017, Mitchell filed the 99-20272 Second Motion for Hearing. (99-20272: ECF No. 215 at 422.) In that motion, Mitchell seeks substantially the same relief as he seeks in the 99-20272 First Motion for Hearing and makes additional arguments in support of his Johnson challenge. (Id.)

         On May 16, 2017, the Clerk of Court opened Case No. 17-02341. On May 30, 2017, the Court directed the Clerk to docket in Case No. 17-02341 filings and motions related to Mitchell's Johnson challenge that were originally filed in Case No. 15-02485. (17-02341: ECF No. 5 at 17.)[12] The Court decided that, because Case No. 15-02485 had been closed following entry of judgment, it would not be appropriate to resolve Mitchell's Johnson challenge in that case. The Court decided that Mitchell's Johnson challenge should be decided in Case No. 17-02341. Mitchell's Johnson § 2255 Motion is ripe for review.

         II. Standard of Review

         Mitchell seeks relief under 28 U.S.C. § 2255. Under § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of the maximum authorized by law . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         “To succeed on a § 2255 motion, a prisoner in custody must show ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'” McPhearson v. United States, 675 F.3d 553, 558-59 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)).

         A prisoner must file his § 2255 motion within one year of the latest of:

(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 ...

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