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Kitts v. United States

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

November 17, 2017

CHARLES DENNIS KITTS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          RONNIE GREER UNITED STATES DISTRICT JUDGE

         By Memorandum Opinion and Judgment Order entered on May 31, 2017, this Court denied and dismissed with prejudice Petitioner's pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, which had challenged, 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). Presently before the Court is Petitioner's counseled motion for reconsideration of that order.

         Upon review of the papers submitted by both parties, the Court finds Petitioner's motion to be well-taken, as the record now before the Court establishes that Petitioner no longer qualifies as an armed career criminal under the ACCA. Accordingly, Petitioner's motion for reconsideration [Doc. 109] will be GRANTED. The Memorandum Opinion and Judgment Order entered on May 31, 2017 [Docs. 106 and 107], will be VACATED in part solely in regard to Petitioner's Johnson-related claim, and Petitioner's § 2255 motion [Doc. 70], as supplemented [Doc. 83], will be GRANTED in part, again solely as to Petitioner's Johnson-related claim. In all other respects, the Court's Memorandum Opinion and Judgment Order entered on May 31, 2017, shall remain in full force and effect.

         I. RELEVANT BACKGROUND

         On December 8, 2011, a jury found Petitioner guilty of possession of a firearm by a convicted felon [Doc. 40]. A presentence investigation report (“PSIR”) identified five previous Tennessee state court convictions for a violent felony, committed on occasions different from one another, that qualified Petitioner as an armed career criminal under the ACCA: (1) two 1982 convictions for second-degree burglary [PSIR ¶ 28]; (2) a 1984 conviction for second-degree burglary [Id. ¶ 31]; (3) a 1992 conviction for aggravated burglary [Id. ¶ 36]; and (4) a 1997 conviction for aggravated burglary [Id. ¶ 42]. On May 21, 2012, Petitioner was sentenced as an armed career criminal to a term of imprisonment of 262 months and a term of supervised release of 5 years [Doc. 56 at 2-3].

         After Petitioner's conviction and sentence were affirmed by the Sixth Circuit Court of Appeals [Doc. 67], and the United States Supreme Court denied a writ of certiorari [Doc. 69], Petitioner filed a pro se § 2255 motion [Doc. 70] and supplement [Doc. 83] challenging his armed career criminal status based on the Supreme Court's invalidation of the ACCA's residual clause in Johnson.

         On May 31, 2017, the Court denied Petitioner's pro se § 2255 motion, as supplemented, in its entirety [Docs. 106, 107]. In particular, the Court rejected Petitioner's Johnson claim, finding that “all three of Petitioner's prior second-degree burglary convictions remain predicate offenses under the enumerated offense clause, i.e., independent of the now-defunct residual clause” [Doc. 106 at 14]. Because the Court determined that Petitioner's three second-degree burglary convictions all still qualify post-Johnson as convictions of a “violent felony, ” the Court “decline[d] to address the status of his prior aggravated burglary convictions after Johnson and Mathis” [Id. at 15].

         II. ASSERTED GROUNDS FOR RECONSIDERATION

         On August 11, 2017, Assistant Federal Defender Laura Davis entered her appearance on behalf of Petitioner limited solely to his Johnson claim [Doc. 108] and filed a motion for reconsideration of the Court's May 31, 2017, judgment order [Doc. 109]. Specifically, counsel reports that upon her initial review of Petitioner's case, she mistakenly determined that Petitioner was not entitled to Johnson relief because of the three second-degree burglary convictions identified in PSIR ¶¶ 28 and 31 and, therefore, she did not file any counseled supplement on his behalf prior to the Court's ruling [Doc. 109 at 1].

         However, upon further inspection, counsel observed that although ¶ 28 of the PSIR identifies two separate convictions for second-degree burglary as predicate ACCA offenses, Petitioner actually was found not guilty of one of those counts [Id. at 1-2; PSIR ¶ 28]. Accordingly, Petitioner has only two qualifying convictions for second degree burglary, not three. Further, his two aggravated burglary convictions also no longer qualify as ACCA predicate offenses in light of United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (holding that Tennessee aggravated burglary categorically is not a violent felony for ACCA purposes) [Id. at 2]. Petitioner thus asks the Court to reconsider its denial of sentencing relief under Johnson.

         In response, the government acknowledges that Petitioner actually has only two qualifying convictions for second-degree burglary and also concedes that his aggravated burglary convictions no longer qualify as ACCA predicate offenses in light of Stitt [Doc. 113 at 4]. However, the government nevertheless suggests that Petitioner remains an armed career criminal based on his two second-degree burglary convictions along with one additional qualifying conviction: a 1984 conviction for assault with a deadly weapon as set forth in PSIR ¶ 29, which qualifies as a violent felony under the ACCA's use-of-force clause [Id.] In support, the government has submitted an “affidavit of complaint” filed in the General Sessions Court of Hamblen County indicating that Petitioner “came at the affiant with a baseball bat, swinging it at him” [Doc. 114].

         In reply, Petitioner has submitted documentation indicating that the 1984 conviction set forth in PSIR ¶ 29 arose from his guilty plea of a misdemeanor count of destruction of private property, not a felony count charging assault with a deadly weapon [Doc. 116-1]. While the government has filed a supplemental response suggesting that the state court records “are arguably ambiguous” as to whether Petitioner was convicted of assault with a deadly weapon, it concedes that, absent such a conviction, Petitioner “has insufficient other prior convictions to qualify as an armed career criminal” [Doc. 117 at 3].

         Petitioner's supplemental reply notes that the government has not presented any proof that Petitioner was convicted of assault with a deadly weapon, and in fact could not have been convicted of that felony offense in the General Sessions Court of Hamblen County as a general sessions court can accept pleas only in misdemeanor cases [Doc. 118 at 1-2].

         III. ...


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