United States District Court, E.D. Tennessee
TONY B. CROWDER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
A. Varlan CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is a second motion to vacate, set aside, or
correct a sentence pursuant to 28 U.S.C. § 2255 filed by
Tony B. Crowder (“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. 113],
as supplemented [Doc. 116], will be GRANTED.
7, 2005, a grand jury sitting in the Eastern District of
Tennessee returned a one-count superseding 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. 30]. Following a trial on December 5,
2005, Petitioner was found guilty by jury verdict [Doc. 45].
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) an October 15, 1990, conviction for burglary of a
habitation in the Monroe County, Tennessee, Criminal Court
[PSIR ¶ 29]; (2) an April 4, 1994, conviction for
aggravated burglary in the Monroe County, Tennessee, Criminal
Court [PSIR ¶ 35]; and (3) a January 12, 1994,
conviction for aggravated burglary in the Polk County,
Tennessee, Criminal Court [PSIR ¶ 36]. 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 [PSIR ¶¶
March 30, 2006, Petitioner was sentenced to a term of
imprisonment of 262 months at count one of the superseding
indictment and a term of supervised release of three years
[Doc. 53 pp. 2-3]. The Sixth Circuit Court of Appeals
subsequently affirmed Petitioner's conviction but
remanded for resentencing [Doc. 64]. On October 18, 2007,
Petitioner was resentenced to 235 months' imprisonment
and 3 years' supervised release [Doc. 70 pp. 2-3].
Petitioner filed his first § 2255 motion in December
2008 alleging, inter alia, that his counsel was
ineffective for failing to file a notice of appeal from the
Court's resentencing [Doc. 72]. On February 19, 2009, the
Court granted the motion, vacated Petitioner's sentence
and re-imposed the same 235-month incarceration sentence
along with 3 years' supervised release [Docs. 76, 77].
Petitioner's appeal from that sentence was dismissed for
want of prosecution by the Sixth Circuit on April 17, 2009
9, 2016, Petitioner, through court-appointed counsel, filed
in the Sixth Circuit Court of Appeals a motion for leave to
file a proposed second § 2255 motion seeking to raise a
new challenge to his armed career criminal status based on
the Supreme Court's invalidation of the ACCA's
residual clause in Johnson [Doc. 113 pp. 31, 56]. On
September 2, 2016, the Sixth Circuit granted Petitioner's
request for certification and authorized this Court to
consider his proposed application for relief [Doc. 112].
Petitioner then filed his second § 2255 motion
challenging his armed career criminal designation under
Johnson [Doc. 113].
27, 2017, the Sixth Circuit issued its en banc decision in
Stitt, holding that a conviction of aggravated
burglary under Tennessee law does not qualify as a violent
felony predicate offense under the ACCA. 860 F.3d at 856. On
August 17, 2017, the government filed a supplemental response
to Petitioner's § 2255 motion conceding that
Petitioner no longer qualifies as an armed career criminal in
light of Johnson and Stitt [Doc. 117].
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 sought leave to file his proposed §
2255 motion raising a Johnson claim in the Sixth
Circuit Court of Appeals on June 9, 2016 [Doc. 113 p. 56],
which falls safely within the one-year window for requesting
collateral relief under Johnson.