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Brummitt v. United States

United States District Court, E.D. Tennessee, Greeneville

August 10, 2017

TOMMY BRUMMITT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         Presently before the Court are a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 filed by Tommy Brummitt (“petitioner”) and a counseled supplemental § 2255 motion which challenge Petitioner's 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).[1] 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 pro se § 2255 motion [Doc. 56] and counseled supplemental § 2255 motion [Doc. 64] will be GRANTED.[2]

         I. BACKGROUND

         On February 11, 2014, a grand jury sitting in the Eastern District of Tennessee returned a two-count indictment against petitioner and a co-defendant. Petitioner was charged in Count One with possession of one or more firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) [Doc. 1]. On June 9, 2014, petitioner entered a plea of guilty as to Count One [Doc. 28].

         The 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) a 1994 conviction for arson in the Carter County, Tennessee, Criminal Court [PSIR ¶ 33]; (2) a 2006 conviction for aggravated burglary in the Carter County, Tennessee, Criminal Court [PSIR ¶ 45]; and, (3) a 2013 conviction for aggravated burglary in the Carter County, Tennessee Criminal Court [PSIR ¶ 48]. 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 ¶¶ 74 and 75].

         On September 29, 2014, petitioner was sentenced to a term of imprisonment of 188 months on Count One of the indictment, to run concurrently with any state court sentence that may be imposed in Carter County Criminal Court Docket Number 22561, to be followed by a term of supervised release of five years. [Doc. 47]. Petitioner did not file a direct appeal.

         On September 28, 2015, petitioner filed a pro se § 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. 56]. On June 22, 2016, petitioner, 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. 64].

         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 December 14, 2016 [Doc. 69]. 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.

         On July 26, 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 [Doc. 71].

         II. ANALYSIS

         1. TIMELINESS

         Section 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).

         Claims 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.

         In this case, petitioner's supplemental § 2255 motion was filed on June 22, 2016, which falls safely within the one-year window for ...


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