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Perry v. United States

United States District Court, W.D. Tennessee, Western Division

November 30, 2017

ROBIN PERRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAMUEL H. MAYS, JR., UNITED STATES DISTRICT JUDGE

         Before the Court are five motions filed by Petitioner Robin Perry: (1) motion seeking to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255 (“Pro Se Motion I”), filed on March 23, 2015 (ECF No. 1); (2) Motion Pursuant to 28 U.S.C. § 2255(f)(3) to Vacate Sentence in Light of Descamps v. United States and Johnson v. United States (“Pro Se Motion II”), filed on July 20, 2015 (ECF No. 3); (3) amended motion seeking to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255 (“Pro Se Motion III”), filed on December 7, 2015 (ECF No. 8); (4) Second Supplemental Memorandum in Support of Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (“Second § 2255 Motion”), filed on May 17, 2016 (ECF No. 15); Motion to Set Case For Status Hearing, filed on November 30, 2017 (ECF No. 26). Petitioner challenges her sentence in Case No. 2:09-20324. The government responded to the Second § 2255 Motion on September 15, 2016. (ECF No. 21.) Petitioner replied on September 26, 2016. (ECF No. 22.)

         For the following reasons, the Second § 2255 Motion is DENIED, and Pro Se Motion I, Pro Se Motion II, Pro Se Motion III, and Motion to Set Case For Status Hearing are DENIED AS MOOT.

         I. Background

         On March 18, 2011, Petitioner pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (Cr. ECF No. 81 at 145.)[1] At the time of her sentencing, Petitioner was an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”) because she had three prior ACCA-predicate convictions. Petitioner had been convicted of: (1) Tennessee criminal attempt: aggravated assault; (2) Ohio robbery (physical harm); and (3) Ohio aggravated assault (deadly weapon). (Presentence Investigation Report (“PSR”) ¶¶ 42, 55, 57.) On July 26, 2011, the Court sentenced Petitioner to 180 months in prison. (Cr. ECF No. 89 at 177.) Had Petitioner not been an armed career criminal, she would have been subject to a statutory maximum sentence of 120 months in prison. See 18 U.S.C. § 924(a)(2).

         On March 23, 2015, Petitioner filed Pro Se Motion I. (ECF No. 1; see also ECF No. 1-1.) On July 20, 2015, Petitioner filed Pro Se Motion II. (ECF No. 3.) On December 7, 2015, Petitioner filed Pro Se Motion III. (ECF No. 8; see also ECF No. 8-1.) On April 25, 2016, Petitioner filed Pro Se Motion IV. (ECF No. 12.)

         After those motions were filed, Assistant Federal Public Defender David Bell began representing Petitioner. Petitioner filed a Motion for Leave to Supplement Pro Se Filings Related to Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. (ECF No. 13.) The Court granted that motion on May 13, 2016. (ECF No. 14.)

         On May 17, 2016, Petitioner filed this Second Supplemental Memorandum in Support of Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. (ECF No. 15.) The government responded on September 15, 2016. (ECF No. 21.) Petitioner replied on September 26, 2016. (ECF No. 23.)

         On December 16, 2016, the Court entered an Order denying as moot Petitioner's Pro Se Motion IV. (ECF No. 23.) The Order stated that, because Petitioner was now represented by Bell, “[t]he Court will consider [Petitioner's] arguments for relief based on her counsel's filings.” (Id. at 169.) Petitioner's Pro Se Motion I, Pro Se Motion II, and Pro Se Motion III are also DENIED AS MOOT.

         On November 30, 2017, Petitioner filed her Motion to Set Case For Status Hearing. (ECF No. 26.) Petitioner asks the Court to set the case for a status hearing because “this Court has yet to rule on [Petitioner's] filings.” (Id. at 176.) This Order rules on Petitioner's motions. Petitioner's Motion to Set Case For Status Hearing is DENIED AS MOOT.

         II. Timeliness

         Petitioner challenges her sentence based on Johnson, which provides a new rule of constitutional law made retroactively applicable to cases on collateral review. Johnson v. United States, 135 S.Ct. 2551 (2015); Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Petitioner's § 2255 Motion alleges constitutional error that resulted in a sentence that now exceeds the statutory limits applicable to her offense. Johnson was decided on June 26, 2015, and Petitioner filed her Pro Se Motion II on July 20, 2015. (ECF No. 3.) Petitioner filed her Motion within one year of Johnson. Petitioner's Motion is timely. See 28 U.S.C. § 2255(f)(3).

         III. Analysis

         In Johnson, the Supreme Court held that a sentence imposed under the residual clause of the ACCA violates due process. 135 S.Ct. at 2563. Petitioner argues that two of her prior convictions -- those for Tennessee criminal attempt: aggravated assault and Ohio robbery (physical harm) -- are no longer predicate violent felonies after Johnson. (ECF No. 15 at 108.) Petitioner contends that she is entitled to be resentenced because, after Johnson, she no ...


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