United States District Court, M.D. Tennessee, Nashville Division
A TRAUGER, U.S. DISTRICT JUDGE.
before the court are the Petitioner's pro se
Motion To Vacate, Set Aside, Or Correct Sentence By A Person
In Federal Custody Pursuant To 28 U.S.C. § 2255 (Docket
No. 1); an Amended Motion To Vacate, Set Aside, Or Correct
Sentence In Accordance With 28 U.S.C. § 2255 (Docket No.
3), filed by counsel for the Petitioner; the Government's
Response (Docket No. 9), and the Petitioner's Reply
(Docket No. 10). For the reasons set forth herein, the
Petitioner's Motion To Vacate (Docket Nos. 1) and Amended
Motion To Vacate (Docket No. 3) are DENIED, and this action
Petitioner was convicted, after a jury trial before former
Judge Robert L. Echols, of unlawful possession of a firearm
by a convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924. (Docket Nos. 40, 41, 43, 65-68 in Case No.
3:05cr00209). The Petitioner qualified for a 15-year
mandatory minimum statutory sentence as an Armed Career
Criminal based on the following prior Tennessee convictions:
a 1983 conviction for third degree burglary; a 1985
aggravated assault conviction with an offense date of October
14, 1983; a 1985 conviction for armed robbery; and a 1985
conviction for aggravated assault with an offense date of
October 30, 1984. (Docket No. 61, at ¶¶ 20, 91, in
Case No. 3:05cr00209). At the sentencing hearing, on January
19, 2007, Judge Echols imposed a sentence of 252 months of
imprisonment. (Docket Nos. 62, 63, 64 in Case No.
3:05cr00209). The Petitioner appealed his conviction, and the
Sixth Circuit affirmed. (Docket No. 69 in Case No.
3:05cr00209). On October 6, 2008, the Supreme Court denied
the Petitioner's petition for writ of certiorari. (Docket
No. 72 in Case No. 3:05cr00209).
28 U.S.C. § 2255
Petitioner has brought this action pursuant to 28 U.S.C.
§ 2255. Section 2255 provides a statutory mechanism for
challenging the imposition of a federal sentence:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). In order to obtain relief under
Section 2255, a petitioner “‘must demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury's verdict.'” Humphress v.
United States, 398 F.3d 855, 858 (6th Cir. 2005)(quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
factual dispute arises in a § 2255 proceeding, the court
is to hold an evidentiary hearing to resolve the dispute.
Ray v. United States, 721 F.3d 758, 761 (6th Cir.
2013). An evidentiary hearing is not required, however, if
the record conclusively shows that the petitioner is not
entitled to relief. 28 U.S.C. § 2255(b); Ray,
721 F.3d at 761; Arredondo v. United States, 178
F.3d 778, 782 (6th Cir. 1999). A hearing is also
unnecessary “if the petitioner's allegations
‘cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.'”
reviewed the pleadings, briefs, and records filed in the
Petitioner's underlying criminal case, as well as the
filings in this case, the court finds it unnecessary to hold
an evidentiary hearing because the records conclusively
establish that the Petitioner is not entitled to relief on
the issues raised.
Johnson v. United States
Petitioner requests that the court apply the decision in
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551, 192 L.Ed.2d 569 (2015) to reduce his sentence. In
Johnson, the Supreme Court held that the so-called
“residual clause” of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally vague. The ACCA imposes a 15-year
mandatory minimum sentence for defendants convicted of
certain firearms offenses who have three previous convictions
for a “violent felony” or a “serious drug
offense.” 18 U.S.C. § 924(e)(1). The
“residual clause” is part of the definition of
“violent felony, ” as set forth below in italics:
(2) As used in this subsection-
* * *
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by ...