United States District Court, E.D. Tennessee
RHYAN C. DRIGGANS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Magistrate Judge Christopher H. Steger
R. MCDONOUGH UNITED STATES DISTRICT JUDGE
the Court are the following motions: (1) a motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. §
2255; and (2) a supplemental § 2255 motion filed by
petitioner Rhyan C. Driggans. Petitioner's motions
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). 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 (6thCir. 2017), it now is
undisputed that petitioner no longer qualifies as an armed
career criminal under the ACCA. Accordingly, petitioner's
§ 2255 motion [Doc. 19] and supplemental § 2255
motion [Doc. 28] will be GRANTED.
December 15, 2004, a grand jury sitting in the Eastern
District of Tennessee returned a two-count indictment
charging petitioner with possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1),
and possession of a stolen firearm in violation of §
922(j) [Doc. 1]. On August 1, 2005, petitioner entered a plea
of guilty as to count one [Doc. 14].
presentence investigation report (“PSIR”)
identified three previous convictions for a violent felony,
which qualified petitioner as an armed career criminal under
the ACCA: (1) a 1997 conviction for burglary in the Catoosa
County, Georgia, Superior Court [PSIR ¶ 24]; (2) a 1999
conviction for aggravated burglary in the Hamilton County,
Tennessee, Criminal Court [PSIR ¶ 26]; and, (3) a 1999
conviction for burglary in the Catoosa County, Georgia,
Superior Court [PSIR ¶ 28]. As an armed career criminal,
petitioner was subject to a statutory mandatory minimum
sentence of 15 years, and his advisory guideline sentence was
180 months [PSIR ¶¶ 50, 51]. On November 14,
2005, petitioner was sentenced to a term of imprisonment of
180 months and a term of supervised release of four years
[Doc. 16]. Petitioner did not file a direct appeal.
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. 19]. On June 1, 2016, petitioner, again through
court-appointed counsel, filed a supplemental § 2255
motion raising an additional challenge to his armed career
criminal status based on the Supreme Court's invalidation
of the ACCA residual clause in Johnson [Doc. 28].
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 October 20, 2016 [Doc. 38]. On June 27, 2017, the
Sixth Circuit held 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.
26, 2017, the parties filed a joint status report, in which
they agreed that petitioner no longer qualifies as an armed
career criminal in light of Johnson and
Stitt [Doc. 39].
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).
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 v. United States, 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.
case, petitioner filed his supplemental § 2255 motion on
June 1, 2016, which falls safely within the one-year window