United States District Court, E.D. Tennessee, Greeneville
LONNIE W. BAWGUS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RONNIE GREER UNITED STATES DISTRICT JUDGE
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 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). 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.
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].
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 were for aggravated burglary
under Tennessee law [PSIR ¶¶ 41, 42 (thirteen
counts)]. 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].
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].
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].
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.
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].
17, 2017, Petitioner, through court-appointed counsel, filed
a sealed reply [Doc. 186].
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).
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).
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.
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