United States District Court, W.D. Tennessee, Eastern Division
ORDER DISMISSING § 2241 MOTION, DENYING MOTIONS
FOR COUNSEL, AND TAKING § 2255 MOTION UNDER
DANIEL BREEN, UNITED STATES DISTRICT JUDGE
the Court is the motion of Petitioner, Brad Davis, to vacate,
set aside, or correct his sentence under 28 U.S.C. §
2255, filed in civil case number 13-cv-1225 (“§
2255 Petition”), as well as Petitioner's motions
for appointment of counsel. (2255 Pet., Davis v. United
States, No. 13-cv-1225 (W.D. Tenn.) (“2255
Case”), ECF No. 1; First Mo. Counsel, 2255 Case, ECF
No. 8; Second Mo. Counsel, 2255 Case, ECF No. 12.) Also
before the Court is the inmate's motion for sentencing
relief under Johnson v. United States, 135 S.Ct.
2551 (2015), which was filed as a petition under 28 U.S.C.
§ 2241 in civil case number 16-cv-1071 (“§
2241 Petition”). (2241 Pet., Davis v. United
States, No. 16-cv-1071 (W.D. Tenn.) (“2241
Case”), ECF No. 1.)
Court construes the § 2255 Petition as asserting a
timely Johnson claim and DISMISSES the § 2241
Petition. For the following reasons, the § 2255
Petition is TAKEN UNDER ADVISEMENT. The motions for counsel
are DENIED as moot. The Court will allow Respondent, United
States of America, an opportunity to supplement the record.
14, 2007, Davis was indicted by a federal grand jury with
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g). (Indict., United States v.
Davis, No. 1:07-cr-10063 (W.D. Tenn.) (“Cr.
Case”), ECF No. 1.) The Court appointed the Federal
Public Defender's Office to represent him, (Order, Cr.
Case, ECF No. 8), and on April 30, 2009, he entered a plea of
guilty to the sole count of the indictment. (Ch. Plea Order,
Cr. Case, ECF No. 55.)
on three Tennessee convictions for evading arrest, an adult
conviction for aggravated assault, a juvenile conviction for
aggravated robbery, and a juvenile conviction for aggravated
assault, Davis was determined to be an armed career criminal
subject to a mandatory minimum sentence of 15 years'
incarceration under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). (Presentence
Report (“PSR”) at pgs. 7, 14, 19, 21, 33.) The
Court imposed a sentence of 212 months' incarceration,
five years of supervised release, and a $100 assessment.
(Judgment, Cr. Case, ECF No. 81.)
that asserted Johnson claim where § 2255
petition was still pending). Notably, and to its credit,
Respondent has not objected to the Court's resolution of
the Johnson issue, despite Petitioner's misstep.
In fact, the government addressed the Johnson issue
in its supplemental response to the § 2255 Petition.
(Suppl. Resp, 2255 Case, ECF No. 14 at 5-7.) Therefore, the
Court's treatment of the § 2255 Petition as
asserting a claim under Johnson does not prejudice
the government, and properly reflects the course of the
§ 2255 litigation. See Fed. R. Civ. P. 15
(b)(2) (“When an issue not raised by the pleadings is
tried by the parties' express or implied consent, it must
be treated in all respects as if raised in the
pleadings.”); Owens v. Tally, 815 F.2d 79 (6th
Cir. 1987) (per curiam) (table decision) (rejecting
defendant's argument that district court improperly
assisted pro se plaintiff by, among other things,
sua sponte amending the complaint to conform to the
defendant timely appealed his sentence. See United States
v. Davis, 483 F. App'x 998 (6th Cir. 2012.). He
argued that “his juvenile convictions should [not]
qualify as violent felonies” under the ACCA and that
the district court erred in finding that his three Class E
felony evading arrest convictions qualified him for
sentencing as an armed career criminal. Id. at 999.
The Sixth Circuit affirmed the sentence, holding that the
three evading arrest convictions constituted violent felonies
under the ACCA's residual clause. Id. The court
therefore found it “unnecessary” to decide
whether the juvenile convictions qualified as violent
COLLATERAL REVIEW FILINGS
filed his § 2255 Petition on July 31, 2013, asserting
the following claims for relief:
1. Claim 1: Petitioner's sentence was improperly enhanced
under the ACCA based on the Supreme Court's rulings in
Descamps v. United States, 133 S.Ct. 2276 (2013),
and Alleyne v. United States, 133 S.Ct. 2151 (2013).
2. Claim 2: Petitioner's trial counsel rendered
ineffective assistance by failing to advise him that his
sentence could be enhanced under the ACCA.
(2255 Pet., 2255 Case, ECF No. 1 at 3, 11.) Petitioner asks
that his sentence be vacated and that he be resentenced
“without the ACCA enhancement.” (Id. at
United States of America, filed its response to the 2255
Petition on December 17, 2013. (2255 Resp., 2255 Case, ECF
No. 6.) Davis replied on February 19, 2014, (2255 Reply, 2255
Case, ECF No. 7), and subsequently filed two motions for
appointment of counsel. (First Mo. Counsel, 2255 Case, ECF
No. 8; Second Mo. Counsel, 2255 Case, ECF No. 12.)
April 11, 2016, Petitioner filed his § 2241 Petition,
which was docketed as the case-initiating pleading in a
separate civil suit. (2241 Pet., 2241 Case, ECF No. 1.) By
his § 2241 Petition, the inmate requested that his
sentence be reduced pursuant to the Supreme Court's
decision in Johnson, 135 S.Ct. at 2551. (2241 Pet.,
2241 Case, ECF No. 1 at 2.)
Court subsequently ordered the government to file a
supplemental response to Davis's 2255 Petition to address
the then-recent Sixth Circuit decision in United States
v. Pawlak, 822 F.3d 902 (6th Cir. 2016). (Order, 2255
Case, ECF No. 13.) The supplemental response was filed on
July 11, 2016. (Suppl. Resp., 2255 Case, ECF No. 14.)
August 10, 2016, the Court appointed counsel to assist
Petitioner with his claim under Johnson. (Order,
2241 Case, ECF No. 8). The probation officer subsequently
submitted a letter to the parties and the Court in which he
opined that, even after Johnson, Petitioner still
qualifies for an enhanced sentence under the ACCA based on
three of his prior convictions. Appointed counsel filed an
objection to the letter, disagreeing with the officer's
opinion and arguing that Petitioner's juvenile offense of
aggravated assault is not clearly a conviction for the
intentional, rather than reckless, variant of that crime.
(Pet. Resp., 2241 Case, ECF No. 9 at 3-4.) The Court ordered
the government to reply to counsel's argument (Order,
2241 Case, ECF No. 14), which it did on June 26, 2017 (Reply,
2241 Case, ECF No. 15).
claim under Johnson, Petitioner argues that his
Class E felony evading arrest convictions no longer qualify
as predicate convictions for purposes of enhancing his
sentence under the ACCA. (Pet. Resp., 2241 Case, ECF No. 9 at
3-4.) He contends that, without those convictions, he is left
with an insufficient number of qualifying convictions for
enhancement, as his juvenile conviction for aggravated
assault is not a violent felony under the ACCA.
(Id.) Respondent does not dispute that the evading
arrest offenses do not qualify as violent felonies after
Johnson. (Reply, 2241 Case, ECF No. 15 at 4-5; Supp.
Resp., 2255 Case, ECF No. 14 at 4-7.) It insists, however,
that Petitioner has the necessary three offenses for ACCA
enhancement, which include his juvenile aggravated assault
conviction. (Reply, 2241 Case, ECF No. 15 at 6-14; Supp.
Resp., 2255 Case, ECF No. 14 at 4-7.)
Court concludes that the state records pertaining to
Petitioner's juvenile conviction for aggravated assault
do not establish that the conviction qualifies as a predicate
offense under the ACCA. The Court will allow Respondent an
opportunity to expand the record. Because the relief sought
in Claims 1 and 2 is the same as that sought by the
Johnson claim (i.e., resentencing without
enhancement under the ACCA), the Court does not address those
claims at this time.
§ 2255 Standard of Review
seeks habeas relief in this case pursuant to 28 U.S.C. §
2255(a). The statute reads as follows:
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 court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral ...