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Davis v. United States

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

August 2, 2017

BENJI W. DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          LEON JORDAN UNITED STATES DISTRICT JUDGE

         Presently before the Court are a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and a revised § 2255 motion filed by petitioner Benji W. Davis which challenge his enhanced sentence as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015).[1] In light of both Johnson and the recent en banc decision of the Sixth Circuit Court of Appeals in United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), it now is undisputed that petitioner no longer qualifies as an armed career criminal under the ACCA. Accordingly, petitioner's § 2255 motion [Doc. 44] and revised § 2255 motion [Doc. 45], as supplemented [Doc. 58], will be GRANTED.

         I. BACKGROUND

         On March 11, 2008, a grand jury sitting in the Eastern District of Tennessee returned a one-count indictment charging petitioner with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and § 924(e). On September 24, 2008, petitioner entered a plea of guilty as to count one [Doc. 28].

         The presentence investigation report (“PSIR”) identified three previous convictions for a violent felony or a serious drug offense, committed on occasions different from one another, that qualified petitioner as an armed career criminal under the ACCA: (1) an October 14, 1994, conviction for aggravated burglary in the Hawkins County, Tennessee, Criminal Court [PSIR ¶ 27]; and, (2) two March 30, 1999, convictions[2] for delivery of schedule II drugs in the Hawkins County, Tennessee, Criminal Court [PSIR ¶ 29]. As an armed career criminal, petitioner was subject to a statutory mandatory minimum sentence of 15 years to a maximum of life and his advisory guideline range was calculated as 180 to 210 months [PSIR ¶¶ 56, 57].

         On January 29, 2009, petitioner was sentenced to a term of imprisonment of 180 months at count one, to be served concurrently to the sentence imposed in the Hawkins County, Tennessee, Criminal Court, Docket No. 07CR0101, and a term of supervised release of five years [Doc. 34]. Petitioner's designation as an armed career criminal and sentence were affirmed on direct appeal by the Sixth Circuit Court of Appeals on December 22, 2010 [Doc. 40]. Petitioner's application for a writ of certiorari was denied by the United States Supreme Court on April 26, 2011 [Doc. 43].

         On June 20, 2014, petitioner, through court-appointed counsel, filed a § 2255 motion challenging his armed career criminal status based on the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013) [Doc. 44], followed by a revised § 2255 motion elaborating on that claim on July 11, 2014 [Doc. 45]. On June 23, 2016, petitioner filed a supplement to his § 2255 motions seeking to raise an additional challenge to his armed career criminal status based on the Supreme Court's invalidation of the ACCA residual clause in Johnson [Doc. 58].

         The government's motion to defer ruling on petitioner's motion pending an en banc decision from the Sixth Circuit in United States v. Stitt, 646 Fed.App'x 454 (6th Cir. 2016), was granted by the Court on April 17, 2017 [Doc. 61]. On June 27, 2017, the Sixth Circuit issued its en banc decision holding that a conviction of aggravated burglary under Tennessee law does not qualify as a violent felony predicate offense under the ACCA. United States v. Stitt, 860 F.3d at 856.

         On July 14, 2017, the parties filed a joint status report agreeing that petitioner no longer qualifies as an armed career criminal in light of Johnson and Stitt [Doc. 63].

         II. ANALYSIS

         1. TIMELINESS

         Section 2255(f) places a one-year period of limitation on all petitions for collateral relief under § 2255 which runs from 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).

         Claims based on the Supreme Court's opinion in Johnson satisfy the third sub-category - the assertion of a newly recognized right made retroactively applicable to cases on collateral review. Welch, 136 S.Ct. at 1268 (Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review); In Re Watkins, 810 F.3d at 381-85. The one-year limitation period for filing a motion to vacate based on a right newly recognized by the Supreme Court runs from the date on which the Supreme Court initially recognized the right asserted, not from the date on which the right asserted was made retroactively applicable. Dodd v. United States, 545 U.S. 353, 357 (2005). Accordingly, Johnson triggered a renewed one-year period of limitation beginning on the date of that decision, June 26, 2015, and running until June 26, 2016.

         In this case, petitioner filed his supplement to his § 2255 motions on June 23, 2016, which falls safely within the one-year window for ...


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