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Greer v. United States

United States District Court, E.D. Tennessee

August 23, 2017

LONNIE GENE GREER, JR., 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 and a counseled supplemental § 2255 motion filed by Lonnie Gene Greer, Jr., (“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).[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 (6th Cir. 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. 68] and supplemental § 2255 motion [Doc. 76] will be GRANTED.

         I. BACKGROUND

         On August 13, 2013, a grand jury sitting in the Eastern District of Tennessee returned a three-count indictment charging Petitioner in all three counts with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 1]. On April 16, 2014, Petitioner entered a plea of guilty as to Count One [Doc. 29].

         The presentence investigation report (“PSIR”) identified four 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 December 22, 2011, conviction for aggravated burglary in the Washington County, Tennessee, Criminal Court [Doc. 32 ¶ 59]; (2) two convictions on December 22, 2011, for robbery and for aggravated burglary in the Washington County, Tennessee, Criminal Court [Id. ¶ 60]; and (3) a December 22, 2011, conviction for aggravated burglary in the Washington County, Tennessee, Criminal Court [Id. ¶ 61].[2] 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 262 to 327 months [Id. ¶¶ 87, 88].

         On September 29, 2014, Petitioner was sentenced to a term of imprisonment of 180 months, to run concurrently to any sentence that Petitioner received in the Washington County Criminal Court, and a term of supervised release of 3 years [Doc. 61 pp. 2-3]. Petitioner did not file a direct appeal.

         On May 9, 2016, Petitioner filed a pro se § 2255 motion challenging his armed career criminal status based on the Supreme Court's invalidation of the ACCA residual clause in Johnson [Doc. 68]. On June 17, 2016, Petitioner's court-appointed counsel filed a supplemental § 2255 motion expounding upon Petitioner's Johnson argument [Doc. 76].

         The government's motion to defer ruling on Petitioner's motions 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 24, 2016 [Doc. 80]. 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.

         On July 24, 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. 83].

         II. ANALYSIS

         A. 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, 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 filed his pro se § 2255 motion raising a Johnson claim on May 9, 2016, which falls safely within the one-year window ...


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