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Hopkins v. United States

United States District Court, E.D. Tennessee

August 28, 2017

DAVID DWAYNE HOPKINS, 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 sentence pursuant to 28 U.S.C. § 2255 filed by David Dwayne Hopkins (“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. 41] will be GRANTED.

         I. BACKGROUND

         On April 19, 2011, a grand jury sitting in the Eastern District of Tennessee returned a one-count indictment charging Petitioner with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) [Doc. 1]. On July 25, 2011, Petitioner entered a plea of guilty as to count one [Doc. 19].

         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) two convictions on February 25, 1994, for aggravated burglary[2] in the Knox County, Tennessee, Criminal Court [PSIR ¶ 34, 35]; and (2) a 1997 conviction for aggravated burglary in the Blount County, Tennessee, Criminal Court [PSIR ¶ 37]. As an armed career criminal, Petitioner was subject to a statutory mandatory minimum sentence of 15 years to a maximum of life and his guideline sentence under the United States Sentencing Guidelines (“USSG”) was 180 months [PSIR ¶¶ 65, 66].[3]

         On December 19, 2011, Petitioner was sentenced to a term of imprisonment of 180 months at count one of the indictment and a term of supervised release of five years [Doc. 25 pp. 2-3]. On July 6, 2012, the Sixth Circuit Court of Appeals dismissed Petitioner's appeal from his classification and sentence as an armed career criminal [Doc. 30].

         On March 20, 2014, Petitioner filed a pro se § 2255 motion seeking to challenge his armed career criminal status [Doc. 36]. Petitioner's motion was denied as time barred by the Court on April 10, 2014 [Docs. 37, 38].

         On April 4, 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 residual clause in Johnson [Doc. 41 p. 2]. On October 20, 2016, the Sixth Circuit granted Petitioner's request for certification and authorized this Court to consider his proposed application for relief [Doc. 40]. The following day, Petitioner filed in this Court his second § 2255 motion challenging his armed career criminal designation under Johnson as authorized by the Sixth Circuit [Doc. 41].

         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 January 23, 2017 [Doc. 45]. 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 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 [Doc. 47].

         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, 54 ...


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