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DAVIS v. United States

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

August 9, 2017

BRAD DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Cr. No. 1:07-cr-10063-JDB-1

          ORDER DISMISSING § 2241 MOTION, DENYING MOTIONS FOR COUNSEL, AND TAKING § 2255 MOTION UNDER ADVISEMENT

          J. DANIEL BREEN, UNITED STATES DISTRICT JUDGE

         Before 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.)

         The Court construes the § 2255 Petition as asserting a timely Johnson claim and DISMISSES the § 2241 Petition.[1] 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.

         PETITIONER'S CRIMINAL PROCEEDINGS

         On May 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.)

         Based 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.)

         petition 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 proofs).

         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 felonies. Id.

         PETITIONER'S COLLATERAL REVIEW FILINGS

         Petitioner 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 18.)

         Respondent, 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.)

         On 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.)

         The 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.)

         On August 10, 2016, the Court appointed counsel to assist Petitioner with his claim under Johnson. (Order, 2241 Case, ECF No. 8).[2] 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).

         DISCUSSION

         In his 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.)

         The 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.[3]

         Legal Standards

         A. § 2255 Standard of Review

         Davis 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 ...

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