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Crowder v. United States

United States District Court, E.D. Tennessee

August 24, 2017

TONY B. CROWDER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Thomas A. Varlan CHIEF UNITED STATES DISTRICT JUDGE.

         Presently 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).[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 § 2255 motion [Doc. 113], as supplemented [Doc. 116], will be GRANTED.

         I. BACKGROUND

         On June 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].

         The 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 ¶¶ 70, 71].

         On 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 [Doc. 80].

         On June 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].

         On June 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].

         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 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.

         B. ...


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