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Daniel v. United States

United States District Court, E.D. Tennessee, Chattanooga

August 31, 2017

BRIAN DANIEL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          CURTIS L. COLLIER, 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 Brian Daniel (“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. 35] will be GRANTED.

         I. BACKGROUND

         On April 27, 2010, a grand jury sitting in the Eastern District of Tennessee returned a three-count indictment against petitioner charging him at Count One with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); at Count Two with attempt to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C); and at Count Three with possession of equipment, chemicals, products and materials which could be used to manufacture methamphetamine, in violation of 21 U.S.C. § 843(a)(6) [Doc. 1]. On July 15, 2010, petitioner entered a plea of guilty as to Count One [Doc. 11].

         The presentence investigation report (“PSIR”) identified six previous convictions for a violent felony, committed on occasions different from one another, that qualified petitioner as an armed career criminal under the ACCA. All six of these convictions were for aggravated burglary under Tennessee law [PSIR ¶¶ 32 (two counts), [2] 33, 34, 35 and 38]. 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 was 188 to 235 months [PSIR ¶¶ 57 and 58].

         On November 4, 2010, petitioner was sentenced to a term of imprisonment of 180 months at Count One of the indictment to be followed by a term of supervised release of five years [Doc. 16]. Petitioner did not file a direct appeal.

         Petitioner filed his first § 2255 motion pro se on October 6, 2011, alleging numerous grounds of ineffective assistance of counsel [Doc. 18]. On March 31, 2015, the Court denied petitioner's motion, finding that petitioner's claims lacked merit [Docs. 28 and 29]. Petitioner did not seek a certificate of appealability.

         On June 17, 2016, petitioner, through court-appointed counsel, filed a proposed second § 2255 motion challenging his armed career criminal status based on the Supreme Court's invalidation of the ACCA residual clause in Johnson [Doc. 31]. Because petitioner had not received authorization to file a second or successive petition, the Court transferred the motion to the Sixth Circuit for certification pursuant to 28 U.S.C. § 1631 [Docs. 32 and 33]. On October 20, 2016, the Sixth Circuit granted petitioner's request for certification and authorized this Court to consider petitioner's proposed application for relief [Doc. 34]. That same day, petitioner filed his proposed § 2255 motion challenging his armed career criminal designation under Johnson as authorized by the Sixth Circuit [Doc. 35].

         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. Stitt, 860 F.3d at 856. On August 1, 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. 40].

         II. ANALYSIS

         1. 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 announced a substantive rule that has retroactive effect in cases 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 filed his proposed § 2255 motion raising a Johnson claim on June 17, 2016, which falls safely within the one-year window ...


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