United States District Court, E.D. Tennessee, Knoxville
JORDAN, UNITED STATES DISTRICT JUDGE
before the Court is a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 filed by Joshua
Booker (“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 § 2255 motion [Doc. 32]
will be GRANTED.
April 15, 2014, a grand jury sitting in the Eastern District
of Tennessee returned a one-count indictment charging
Petitioner with possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) and § 924(e)
[Doc. 1]. On May 19, 2014, Petitioner entered a plea of
guilty as to count one of the indictment [Doc. 17].
presentence investigation report (“PSIR”)
identified seven previous convictions for a violent felony,
committed on occasions different from one another, that
qualified Petitioner as an armed career criminal under the
ACCA. Six of those convictions were for aggravated burglary
[Doc. 21 ¶¶ 36, 37, 38, 39, 4142]. As an armed
career criminal, Petitioner was subject to a statutory
mandatory minimum incarceration sentence of 15 years to a
maximum of life and his advisory guideline sentencing range
under the United States Sentencing Guidelines
(“USSG”) was 188 to 235 months [Doc. 21
¶¶ 67, 68].
September 9, 2014, Petitioner was sentenced to a term of
imprisonment of 188 months at count one of the indictment and
a term of supervised release of 5 years [Doc. 28]. Petitioner
did not file a direct appeal.
6, 2016, Petitioner, through court-appointed counsel, filed a
§ 2255 motion challenging his armed career criminal
status based on the Supreme Court's invalidation of the
ACCA residual clause in Johnson [Doc. 32]. The
government's motion to defer ruling on Petitioner's
motion pending an en banc decision from the Sixth Circuit in
United States v. Stitt, 646 F. App'x 454 (6th
Cir. 2016), was granted by the Court on October 19, 2016
[Doc. 37]. 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. Stitt, 860
F.3d at 856.
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
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, 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 the supplement to his § 2255
motion raising a Johnson claim on June 6, 2016,
which falls safely within the one-year window for requesting
collateral relief under Johnson.