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Reel v. United States

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

October 3, 2017

ANDREW D. REEL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.

         Presently 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).[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. 26] will be GRANTED.

         I. BACKGROUND

         On 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].

         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. 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, 48].

         On July 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 direct appeal.

         On June 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.

         On 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].[2]

         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, 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 § 2255 motion raising a Johnson claim on June 15, 2016, which falls safely within the one-year window for requesting collateral relief under Johnson.

         B. ...


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