United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.
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).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.
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].
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 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,
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].
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].
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].
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.
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
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, 54 ...