United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
the Court is Landreo Lurry's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (the “§ 2255
Motion”). (ECF No. 1; see also Mem. of Fact
and Law in Supp. of Mot. Filed Under [28 U.S.C. § 2255],
ECF No. 1-1 (“Mem. ISO § 2255 Mot.”).) The
United States (the “Government”) responded on
August 6, 2014. (Resp. of the United States to Mot. to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255, ECF No. 7 (“§ 2255 Resp.”).)
Lurry filed a reply in support of the § 2255 Motion on
September 5, 2014. (Reply of Pet'r to United States Resp.
to Mot. to Vacate, Set Aside, or Correct Sentence Pursuant to
28 U.S.C. § 2255, ECF No. 8 (“§ 2255
Reply”).) On July 8, 2016, Lurry notified the Court
that he also sought relief based on Johnson v. United
States, 135 S.Ct. 2551 (2015). (Notice of Request for
Review, ECF No. 12 (“Johnson Notice”).)
following reasons, the § 2255 Motion is DENIED.
Lurry's request for relief under Johnson is
January 11, 2011, Lurry pled guilty to one count of violating
18 U.S.C. § 922(g) by being a felon in possession of a
firearm. (Order on Change of Plea, ECF No. 75 in
09-20312; see also Indictment 1, ECF No. 5
in 09-20312.) At Lurry's sentencing, the Court determined
that Lurry was an armed career criminal under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e), because Lurry had three prior convictions for
aggravated burglary under Tennessee law. (See, e.g.,
Hr'g Tr. 31, ECF No. 90 in 09-20312 (“Sentencing
Tr.”); see also Presentence Investigation
Report ¶¶ 22, 28-29 in 09-20312.) The Court
sentenced Lurry to 180 months in prison followed by three
years of supervised release. (Sentencing Tr. 34-35; J. in a
Criminal Case 2-3, ECF No. 84 in 09-20312.) Had the Court
determined that Lurry was not an armed career criminal, he
would have been subject to a statutory maximum sentence of
120 months in prison. 18 U.S.C. § 924(a)(2).
an appeal, Lurry filed the § 2255 Motion on July 29,
2013. It has three grounds. First, Lurry argues that he
received ineffective assistance of counsel at sentencing
because his counsel did not argue that Lurry's
aggravated-burglary convictions were not violent felonies
under § 924(e). (§ 2255 Mot. 5-6; Mem. ISO §
2255 Mot. 7-10.) Second, Lurry argues that he received
ineffective assistance of counsel on appeal because his
counsel failed to argue that the traffic stop leading to
Lurry's arrest was unconstitutional. (§ 2255 Mot.
6-7; Mem. ISO § 2255 Mot. 10-12.) Third, Lurry argues
that his guilty plea “was not entered with the advice
of competent counsel.” (§ 2255 Mot. 8.) The
gravamen of the third argument is that Lurry's counsel
did not adequately inform him of possible § 924(e)
penalties. (Id.; see also Mem. ISO §
2255 Mot. 12-13.)
24, 2016, the Court appointed counsel for Lurry, to review
his case in light of Johnson. (Order Appointing
Counsel Pursuant to the Criminal Justice Act, ECF No. 99 in
09-20312.) On July 8, 2016, Lurry sought relief under
Johnson. (Johnson Notice.)
September 21, 2016, the Court entered an order
administratively closing this case pending the en
banc decision of the U.S. Court of Appeals for the Sixth
Circuit in United States v. Stitt. (Order, ECF No.
14.) On June 27, 2017, the Sixth Circuit held that aggravated
burglary under Tennessee law no longer qualifies as a violent
felony for purposes of § 924(e). United States v.
Stitt, No. 14-6158, 2017 WL 2766326, at *1, *7 (6th Cir.
June 27, 2017).
7, 2017, the U.S. Probation Office for the Western District
of Tennessee circulated a memorandum addressing Lurry's
sentence (the “Probation Memorandum”). The
Probation Memorandum concludes that Lurry is entitled to
relief under Johnson. (Probation Mem. 1-2.) The
Probation Memorandum also recalculates Lurry's guideline
imprisonment range. (Id. at 2-3.) It determines that
his total offense level is 20 and that his criminal-history
category is IV. (Id.) The resulting guideline
imprisonment range is 51 to 63 months. (Id. at 3.)
Lurry has served approximately 95 months of his original
sentence. (Id.) The Probation Memorandum concludes
that, “should the court vacate Mr. Lurry's sentence
[pursuant to Johnson], it appears that any sentence
the Court should impose within the guideline range as
recalculated would result in a [time served] sentence.”
10, 2017, the Court ordered the Government to respond to the
Probation Memorandum. (Order Directing United States to
Respond, ECF No. 16.) The Government responded on July 11,
2017. (Resp. of the United States to U.S. Probation
Office's Mem. Review of Movant's Mot. Under 28 U.S.C.
§ 2255 -- Request for Johnson Review, ECF No.
17 (“Johnson Resp.”).) The Government
states that it “agrees that under circuit case law,
[Lurry] is entitled to relief from his sentence.”
(Id. at 1; see also id. at 2-3.) The
Government also states that, “[i]f the Court agrees . .
., it should vacate [Lurry's] sentence and resentence him
to time served, with a three-year period of supervised
release.” (Id. at 1; see also id. at
Section 2255 Motions
seeks relief under 28 U.S.C. § 2255. (§ 2255 Mot.)
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).
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)).
prisoner must file his § 2255 motion within one year of
the latest of:
(1) the date on which the judgment of conviction becomes
(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
(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).
assistance of counsel can serve as a ground for § 2255
relief. See, e.g., Campbell v. United
States, 686 F.3d 353, 357 (6th Cir. 2012). The standard
for ineffective assistance is provided by Strickland v.
Washington, 466 U.S. 668 (1984). To establish
ineffective assistance, “[f]irst, the defendant must
show that counsel's performance was defi- cient. . . .
Second, the defendant must show that the deficient
performance prejudiced the defense.” Id. at
687. “Unless a defendant makes both showings, it cannot
be said that the conviction . . . resulted from a breakdown
in the adversary process that renders the result
demonstrate deficient performance, a petitioner must show
that “counsel's representation fell below an
objective standard of reasonableness.” Id. at
688. In considering an ineffective-assistance claim, a court
“must apply a ‘strong presumption' that
counsel's representation was within the ‘wide
range' of reasonable professional assistance. . . . The
challenger's burden is to show ‘that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment.'” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at
demonstrate prejudice, a petitioner must establish “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. “In assessing prejudice under
Strickland, the question is not whether a court can
be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might
have been established if counsel acted different- ly. . . .
The likelihood of a different result must be substantial, not
just conceivable.” Richter, 562 U.S. at 111-12
(citing Wong v. Belmontes, 558 U.S. 15, 27 (2009);
Strickland, 466 U.S. at 693).
court need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697. If a reviewing court
finds a lack of prejudice, it ...