United States District Court, E.D. Tennessee, Greeneville
BRIAN L. ROGERS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RONNIE GREER UNITED STATES DISTRICT JUDGE
before the Court are a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 and a
supplemental § 2255 motion filed by Brian L. Rogers
(“petitioner”) 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). 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. 35] and supplemental § 2255 motion [Doc.
40] will be GRANTED.
August 8, 2006, 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 a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e), and in Count Two with
possession of ammunition by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e) [Doc. 1]. On
October 16, 2006, petitioner entered a plea of guilty as to
Count One [Doc. 16].
presentence investigation report (“PSIR”)
identified three 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) two convictions on December 11, 1990, for
aggravated burglary in the Greene County, Tennessee, Criminal
Court [PSIR ¶ 30]; and, (2) a 1991 conviction for
burglary in the Greene County, Tennessee, Criminal Court
[PSIR ¶ 31]. 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 ¶¶ 69 and 70].
October 22, 2007, petitioner was sentenced to a term of
imprisonment of 130 months on Count One of the indictment to
be followed by a term of supervised release of five years.
[Doc. 30]. Petitioner did not file a direct appeal.
filed a pro se § 2255 motion on June 2, 2014,
challenging his status as an armed career criminal based on
the Supreme Court's decision in Descamps v. United
States, 133 S.Ct. 2276 (2013) [Doc. 35]. On June 24,
2016, petitioner, through court-appointed counsel, filed a
supplemental § 2255 motion raising a new challenge to
his armed career criminal status based on the Supreme
Court's invalidation of the ACCA residual clause in
Johnson [Doc. 40]. The government's request to
defer ruling on petitioner's motions 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 March 3, 2017 [Doc.
45]. 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.
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 his supplemental § 2255 motion
raising a Johnson claim on June 24, 2016, which
falls safely within the one-year window for requesting
collateral relief under Johnson.