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Henry v. United States

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

September 5, 2017

CHARLES TIMOTHY HENRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leon Jordan United States District Judge.

         Presently before the Court are motions to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and supplements thereto filed by Charles Timothy Henry (“Petitioner”) which challenge 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 motions [Doc. 29 at No. 3:14-CR-107 and Doc. 24 at No. 3:14-CR-117], as supplemented [Doc. 31 at No. 3:14-CR-107 and Doc. 27 at No. 3:14-CR-117] will be GRANTED.

         I. BACKGROUND

         On September 3, 2014, 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 by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); at Count Two with selling a firearm to a convicted felon, in violation of 18 U.S.C. § 922(d)(1); and at Count Three with distributing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) [Doc. 1 at No. 3:14-CR-107]. On October 7, 2014, a grand jury sitting in the Eastern District of Tennessee returned another three-count Indictment against Petitioner charging him at Count One with possession with intent to distribute 5 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); at Count Two with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and at Count Three with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 1 at No. 3:14-CR-117].

         On January 28, 2015, Petitioner entered a plea of guilty to Counts One and Three of the Indictment at No. 3:14-CR-107 and Counts One and Three of the Indictment at No. 3:14-CR-117 [Doc. 19 at No. 3:14-CR-107 and Doc. 15 at No. 1:14-CR-117].

         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) a January 29, 2001, conviction for aggravated burglary in the Loudon County, Tennessee, Criminal Court [Doc. 21 ¶ 43 at No. 3:14-CR-107 and Doc. 16 ¶ 43 at No. 3:14-CR-117]; (2) a December 18, 2000, conviction for aggravated burglary in the Roane County, Tennessee, Criminal Court [Doc. 21 ¶ 44 at No. 3:14-CR-107 and Doc. 16 ¶ 44 at No. 3:14-CR-117]; and (3) a November 21, 2005, conviction for initiating process to manufacture methamphetamine in the Blount County, Tennessee, Criminal Court [Doc. 21 ¶ 54 at No. 3:14-CR-107 and Doc. 16 ¶ 54 at No. 3:14-CR-117]. As an armed career criminal, Petitioner was subject to a statutory mandatory minimum sentence of 15 years to a maximum of life as to each of Count One of the Indictment at No. 3:14-CR-107 and Count Three of the Indictment at No. 3:14-CR-117[2] and his advisory guideline sentencing range under the United States Sentencing Guidelines (“USSG”) was 188 to 235 months [Doc. 21 ¶¶ 77, 78 at No. 3:14-CR-107 and Doc. 16 ¶¶ 77, 78 at No. 3:14-CR-117].

         On April 30, 2015, Petitioner was sentenced to a total term of imprisonment of 180 months, consisting of 180 months as to each of Counts One and Three of the Indictment at No. 3:14-CR-107 and Counts One and Three of the Indictment at No. 3:14-CR-117, all to be served concurrently, [3] and a term of supervised release of 4 years, consisting of 4 years as to each of Count One of the Indictment at No. 3:14-CR-107 and Counts One and Three of the Indictment at No. 3:14-CR-117, and 3 years as to Count Three of the Indictment at No. 3:14-CR-107, all to run concurrently [Doc. 25 at No. 3:14-CR-107 and Doc. 20 at No. 3:14-CR-117]. Petitioner did not file a direct appeal.

         On June 6, 2016, Petitioner, through court-appointed counsel, filed the pending § 2255 motions challenging his armed career criminal status based on the Supreme Court's invalidation of the ACCA residual clause in Johnson [Doc. 29 at No. 3:14-CR-107 and Doc. 24 at No. 3:14- CR-117]. Supplements to those motions were filed on November 25, 2016 [Doc. 31 at No. 3:14-CR-107 and Doc. 27 at No. 3:14-CR-117].

         The government's motions to defer ruling on Petitioner's motions pending an en banc decision from the Sixth Circuit in United States v. Stitt, 646 F. App'x 454 (6th Cir. 2016), were granted by the Court on December 19, 2016 [Doc. 32 at No. 3:14-CR-107 and Doc. 28 at No. 3:14-CR-117]. 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 27, 2017, the parties filed joint status reports agreeing that Petitioner no longer qualifies as an armed career criminal in light of Johnson and Stitt [Doc. 34 at No. 3:14-CR-107 and Doc. 30 at No. 3:14-CR-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, 54 ...


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