United States District Court, E.D. Tennessee, Greeneville
DALE W. HAMMONDS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RONNIE GREER UNITED STATES DISTRICT JUDGE
before the Court is a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 filed by Dale W.
Hammonds (“petitioner”) which challenges 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
(6th Cir. 2017), it now is undisputed that
petitioner no longer qualifies as an armed career criminal
under the ACCA. Accordingly, petitioner's amended §
2255 motion [Doc. 33] will be
10, 2005, a grand jury sitting in the Eastern District of
Tennessee returned a two-count indictment against petitioner
charging him in Count One with possession of firearms and
ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1), and in Count Two with possession of stolen
firearms and ammunition, in violation of 18 U.S.C.
§§ 922(j) and 924(a)(2) [Doc. 1]. On August 22,
2005, petitioner entered a plea of guilty as to Count One
presentence investigation report (“PSIR”)
identified five previous convictions for a violent felony,
committed on occasions different from one another, that
qualified petitioner as an armed career criminal under the
ACCA: (1) a 1990 conviction for attempt to commit second
degree murder in the Sullivan County, Tennessee, Criminal
Court [PSIR ¶ 27]; (2) a 1990 conviction for aggravated
burglary in the Washington County, Tennessee, Criminal Court
[PSIR ¶ 29]; (3) and (4) two convictions on September 9,
1994, for arson and aggravated burglary in the Washington
County, Tennessee Criminal Court [PSIR ¶ 31]; and, (5) a
1998 conviction for escape in the Washington County,
Tennessee, Criminal Court [PSIR ¶ 35]. 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 sentencing range was 180 to 210
months [PSIR ¶¶ 51 and 52].
October 31, 2005, petitioner was sentenced to a term of
imprisonment of 180 months on Count One of the indictment to
be followed by a term of supervised release of five years.
[Doc. 24]. Petitioner did not file a direct appeal.
March 28, 2016, petitioner filed his pending § 2255
motion challenging his armed career criminal status based on
the Supreme Court's invalidation of the ACCA residual
clause in Johnson [Doc. 33]. The government's
request to defer ruling on petitioner's motion, as
supplemented, pending an en banc decision from the
Sixth Circuit in United States v. Stitt, 646 F.
App'x 454 (6th Cir. 2016), was granted by the
Court on March 3, 2017 [Doc. 46]. 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. Stitt, 860 F.3d at 856.
27, 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
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 the supplement to his pending §
2255 motion on March 28, 2016, which falls safely within the
one-year window for requesting collateral relief under