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Locke v. United States

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

December 19, 2017

BILLY WAYNE LOCKE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Susan K. Lee Magistrate Judge.

          MEMORANDUM OPINION

          TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE.

         Presently before the Court are a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, filed by Billy Wayne Locke (“Petitioner”) and a counseled supplemental § 2255 motion which, inter alia, challenge 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 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 pro se § 2255 motion [Doc. 128] and supplemental § 2255 motion [Doc. 151] will be GRANTED in part solely as to Petitioner's Johnson-related claim, but will be DENIED in part as to all other claims raised therein.[2]

         I. BACKGROUND

         On May 24, 2011, a grand jury sitting in the Eastern District of Tennessee returned a one-count indictment charging Petitioner with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g) and § 924(a)(2) [Doc. 1]. Petitioner proceeded to trial and a jury found him guilty as to count one on January 22, 2013 [Doc. 105].

         A presentence investigation report (“PSIR”) identified four previous convictions for violent felonies, committed on occasions different from one another, that qualified Petitioner as an armed career criminal under the ACCA: (1) a 1990 conviction for aggravated burglary in the McMinn County, Tennessee, Criminal Court [PSIR ¶ 23]; (2) a 1999 conviction for burglary of a habitation[3] in the Polk County, Tennessee, Criminal Court [PSIR ¶ 27; see also Doc. 131-2]; (3) a 2002 conviction for felony evading arrest in the Polk County, Tennessee, Criminal Court [PSIR ¶ 28]; and (4) a 2003 conviction for aggravated assault in the McMinn County, Tennessee, Criminal Court [PSIR ¶ 30]. As an armed career criminal, Petitioner was subject to a statutory mandatory-minimum sentence of 15 years to a maximum of life and his advisory guideline sentencing range under the United States Sentencing Guidelines (“USSG”) was 235 to 293 months [PSIR ¶¶ 49, 50].

         On April 25, 2013, Petitioner was sentenced to a term of imprisonment of 235 months on count one of the indictment and a term of supervised release of three years [Doc. 115 pp. 2-3]. Petitioner's conviction and sentence were affirmed by the Sixth Circuit Court of Appeals on January 31, 2014 [Doc. 126].

         On May 8, 2014, Petitioner filed a pro se § 2255 motion asserting numerous challenges to his conviction and sentence, including: (1) lack of federal jurisdiction; (2) insufficiency of the indictment; (3) sentencing improprieties; (4) a Fourth Amendment violation arising from the denial of his suppression motion; and (5) various claims of ineffective assistance of counsel, including a failure to challenge Petitioner's armed career criminal status based on the Supreme Court's decision in Descamps v. United States, 570 U.S. 254 (2013) [Docs. 128-129].

         On June 22, 2016, Petitioner, through court-appointed counsel, filed a supplement to his pro se § 2255 motion raising an additional challenge to his armed-career-criminal status based on the Supreme Court's invalidation of the ACCA residual clause in Johnson [Doc. 151]. The government's motion to defer ruling on Petitioner's motion pending an en banc decision from the Sixth Circuit in United States v. Stitt, 646 F. App'x 454 (6th Cir. 2016), was granted by the Court on March 7, 2017 [Doc. 156]. 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 July 27, 2017, the parties filed a joint status report agreeing that Petitioner no longer qualifies as an armed career criminal in light of Johnson and Stitt, but disagreeing as to the appropriate sentencing relief [Doc. 160].

         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).

         In this case, the Sixth Circuit Court of Appeals affirmed Petitioner's conviction and sentence on direct review on January 31, 2014, and Petitioner's conviction became final when the time for filing a petition for writ of certiorari to the United States Supreme Court expired ninety days later on May 1, 2014. See Clay v. United States, 537 U.S. 522, 532 (2003); Sanchez-Castellano v. United States, 358 F.3d 424, 426-27 (6th Cir. 2004). Petitioner's initial § 2255 motion was filed on May 8, 2014, well within the one-year period of limitation under § 2255(f)(1).

         As to Petitioner's supplemental motion, 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 the supplement to his § 2255 motion raising a Johnson claim on June 22, 2016, which falls safely within the one-year window for requesting collateral relief under Johnson.

         B. STANDARD OF REVIEW

         To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” McPhearson v. United States, 675 F.3d 553, 558-59 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         C. ...


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