United States District Court, E.D. Tennessee
RONNIE GREER UNITED STATES DISTRICT JUDGE.
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). 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
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].
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]. 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].
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.
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].
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.
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
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 his pro se § 2255 motion raising
a Johnson claim on May 9, 2016, which falls safely
within the one-year window ...