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Lurry v. United States

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

July 20, 2017

LANDREO LURRY, Petitioner,



         Before 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”).)

         For the following reasons, the § 2255 Motion is DENIED. Lurry's request for relief under Johnson is GRANTED.

         I. BACKGROUND

         On 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;[1] 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).

         After an appeal, Lurry filed the § 2255 Motion on July 29, 2013. It has three grounds.[2] 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).[3] (§ 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.)

         On June 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.)

         On 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).

         On July 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.” (Id.)

         On July 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 4.)


         A. Section 2255 Motions

         Lurry 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).

         “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 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).

         Ineffective 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 unreliable.” Id.

         To 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 687, 689).

         To 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).

         “[A] 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 ...

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