United States District Court, E.D. Tennessee, Chattanooga
ANDREW D. REEL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
before the Court is a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 filed by
Petitioner Andrew D. Reel 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. 26]
will be GRANTED.
November 10, 2009, a grand jury sitting in the Eastern
District of Tennessee returned a two-count indictment against
Petitioner charging him in both counts with possession of
firearms by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) [Doc. 1]. On January 20, 2010, Petitioner
entered a plea of guilty at both counts [Doc. 16].
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. All three convictions were for aggravated burglary
under Tennessee law [PSIR ¶¶ 26-28]. As an armed
career criminal, Petitioner was subject to a statutory
mandatory minimum incarceration sentence of 15 years to a
maximum of life on each count and his advisory guideline
sentencing range was 188 to 235 months [PSIR ¶¶ 47,
12, 2010, Petitioner was sentenced to a term of imprisonment
of 188 months on each of Counts One and Two of the
Indictment, to be served concurrently, and a term of
supervised release of four years on each count, to run
concurrently [Doc. 23 pp. 2-3]. Petitioner did not file a
15, 2016, Petitioner, through court-appointed counsel, filed
a § 2255 motion challenging his armed career criminal
status based on the Supreme Court's invalidation of the
ACCA residual clause in Johnson [Doc. 26]. The
government filed a response in opposition but acknowledged
that the Sixth Circuit Court of Appeals had granted en
banc review in United States v. Stitt, 646 F.
App'x 454 (6th Cir. 2016), on the issue of whether
Tennessee aggravated burglary is a violent felony [Doc. 27].
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.
September 13, 2017, the government filed a supplemental
response conceding that Petitioner no longer qualifies as an
armed career criminal in light of Johnson and
Stitt, and recommending that Petitioner's
sentence be corrected to a term of imprisonment of 120 months
and a term of supervised release of 3 years [Doc. 29 pp.
3-4]. That same day, Petitioner filed a motion requesting an
expedited decision and concurring in the government's
recommended sentence [Doc. 30].
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, 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 his § 2255 motion raising a
Johnson claim on June 15, 2016, which falls safely
within the one-year window for requesting collateral relief