United States District Court, E.D. Tennessee, Knoxville
DONALD L. CURETON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE
before the Court is an amended motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255 filed
by Donald L. Cureton (“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. 55] will be
January 6, 2004, a grand jury sitting in the Eastern District
of Tennessee returned a four-count superseding indictment
against petitioner and a co-defendant. Petitioner was charged
at Count One with possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e); at Count Two with aiding and abetting the possession
of equipment, chemicals, products and materials used to
manufacture methamphetamine, in violation of 21 U.S.C.
§§ 843(a)(6) and 18 U.S.C. § 2; at Count Three
with failure to appear before the court as required, in
violation of 18 U.S.C. §§ 3146(a)(1) and
(b)(1)(A)(i); and, at Count Four with resisting a lawful
court order, in violation of 18 U.S.C. §§ 401(3)
and 3147 [Doc. 23]. On May 18, 2004, petitioner entered a
plea of guilty as to Counts One and Four of the superseding
indictment [Doc. 27].
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. All three of those convictions were for aggravated
burglary [PSIR ¶¶ 76, 77, 78]. As an armed
career criminal, petitioner was subject to a statutory
mandatory minimum sentence of 15 years to a maximum of life
at Count One and his advisory guideline sentencing range was
180 to 210 months [PSIR ¶¶ 104, 105].
March 30, 2005, petitioner was sentenced to a term of
imprisonment of 180 months as to Count One of the superseding
indictment and 120 months as to Count Four, to be served
concurrently, to be followed by a term of supervised release
of five years on Count One and three years on Count Four, to
be served concurrently. [Doc. 40]. On April 27, 2006, the
Sixth Circuit Court of Appeals affirmed petitioner's
classification and sentence as an armed career criminal [Doc.
49]. Petitioner's application for a writ of certiorari
was denied by the United States Supreme Court on October 16,
2006 [Doc. 52].
6, 2016, petitioner, through court-appointed counsel, filed
an amended § 2255 motion challenging his armed career
criminal status based on the Supreme Court's invalidation
of the ACCA residual clause in Johnson [Doc. 55].
The government's request to defer ruling on
petitioner's motion 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 October 19, 2016 [Doc. 62]. 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 amended § 2255 motion raising
a Johnson claim on June 6, 2016, which falls safely
within the one-year window for requesting collateral relief