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Bawgus v. United States

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

September 20, 2017

LONNIE W. BAWGUS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         Presently before the Court are a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and a supplement thereto[1] filed by Lonnie W. Bawgus (“Petitioner”) challenging, inter alia, 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).[2] 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 pro se § 2255 motion [Doc. 148], as supplemented [Doc. 173], will be GRANTED IN PART solely to the extent Petitioner has raised a Johnson claim, but will be DENIED IN PART as to all other claims raised therein.

         I. BACKGROUND

         On July 14, 2009, a grand jury sitting in the Eastern District of Tennessee returned a one-count 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. 3]. Following a trial, Petitioner was found guilty by jury verdict on Count One on November 17, 2010 [Doc. 115].

         The presentence investigation report (“PSIR”) identified sixteen previous convictions for a violent felony, committed on occasions different from one another, that qualified Petitioner as an armed career criminal under the ACCA. Fourteen of those convictions[3] were for aggravated burglary under Tennessee law [PSIR ¶¶ 41, 42 (thirteen counts)].[4] 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 210 to 262 months [Id. ¶¶ 66, 67].

         On May 23, 2011, Petitioner was sentenced to a term of imprisonment of 210 months and a term of supervised release of 5 years [Doc. 126 at 2-3]. On July 16, 2012, the Sixth Circuit affirmed this Court's order denying Petitioner's motion in limine to exclude from trial a videotape of his arrest [Doc. 140], and the United States Supreme Court denied Petitioner's petition for a writ of certiorari on November 5, 2012 [Doc. 146].

         On July 8, 2013, Petitioner filed a pro se § 2255 motion asserting four general grounds for relief: (1) prosecutorial misconduct before the grand jury; (2) a due process violation arising from the Court's denial of his motion for acquittal; (3) ineffective assistance of counsel; and (4) a challenge to his armed career criminal status based on the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013) [Doc. 148]. The government filed a response in opposition to Petitioner's motion on January 13, 2014 [Doc. 158].

         On April 25, 2016, Petitioner filed a pro se motion to amend his § 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. 173]. While initially opposing Petitioner's attempt to raise a Johnson claim [Doc. 170], the government subsequently filed a 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) [Doc. 179]. The Court granted the government's motion on July 25, 2016, and stayed the case [Doc. 180]. 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 7, 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. 184].

         On July 17, 2017, Petitioner, through court-appointed counsel, filed a sealed reply [Doc. 186].[5]

         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).

         In this case, Petitioner's judgment of conviction became final when the United States Supreme Court denied his petition for a writ of certiorari on November 5, 2012 [Doc. 146]. See Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004) (conviction becomes final for purposes of one-year limitation period upon conclusion of direct review). Petitioner filed his original pro se § 2255 motion on July 8, 2013 [Doc. 148], well within the one-year window permitted under § 2255(f)(1).

         As to Petitioner's supplemental motion, claims based on the Supreme Court's opinion in Johnson satisfy the third sub-category of § 2255(f)--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 filed a pro se motion to amend his § 2255 motion seeking to raise a Johnson claim on April 25, 2016 [Doc. 173], which falls safely within the ...


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