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Harper v. United States

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

December 28, 2017

SHERMAN HARPER, 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 Sherman Harper: (1) pro se motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (the “§ 2255 Motion”), filed on July 13, 2015 (ECF No. 1; see also ECF No. 1-1); (2) Addendum to Presentencing Report Objection to Presentencing (“Objection to Presentencing”), filed on November 21, 2016 (ECF No. 21); (3) Request for Status Report, filed on January 30, 2017 (ECF No. 25); (4) Motion to Compel, filed on October 2, 2017 (ECF No. 27); and (5) Motion to Vacate, filed on November 15, 2017 (ECF No. 28).

         For the following reasons, Petitioner's § 2255 Motion and Objection to Presentencing are DENIED. Petitioner's Request for Status Report, Motion to Compel, and Motion to Vacate are DENIED AS MOOT.

         I. Background

         On May 19, 2009, a federal grand jury returned a single-count indictment charging Petitioner, a convicted felon, with possessing an F.I.E. .22-caliber semiautomatic pistol on or about December 22, 2008, in violation of 18 U.S.C. § 922(g). (Cr. ECF No. 1 at 1-2.)[1] Petitioner pled not guilty at his arraignment on June 10, 2009. (Cr. ECF No. 11.) On August 27, 2009, Petitioner changed his plea to guilty. (Cr. ECF No. 23; see also ECF No. 26.)

         At Petitioner's sentencing on December 18, 2009, the Court determined that Petitioner was an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”). (Presentence Investigation Report (“PSR”) ¶ 25.) Petitioner had five prior Tennessee ACCA-predicate convictions: (1) 1985 attempt to commit a felony - aggravated assault; (2) 1986 shooting a missile calculated to produce death or great bodily harm into an occupied dwelling; (3) sexual battery committed between 1984 and 1988; (4) 2000 setting fire to personal property; and (5) 2004 aggravated assault. (PSR ¶¶ 29, 33, 38, 44, 50.) The Court sentenced Petitioner to 188 months in prison, to be followed by a three-year period of supervised release. (Cr. ECF No. 31 at 33-34.)

         On July 13, 2015, Petitioner filed this § 2255 Motion. (ECF No. 1; see also ECF No. 1-1.) Petitioner argues that he is entitled to be resentenced under Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court held that a sentence imposed under the residual clause of the ACCA violates due process. Id. at 2563. In Welch v. United States, the Supreme Court applied its holding in Johnson retroactively to ACCA cases on collateral review. 136 S.Ct. 1257, 1268 (2016); see also In re Watkins, 810 F.3d 375, 383-84 (6th Cir. 2015) (same). Petitioner argues that he is entitled to be resentenced because, after Johnson, three of his prior convictions -- those for (1) attempt to commit a felony - aggravated assault; (2) shooting a missile calculated to produce death or great bodily harm into an occupied dwelling; and (3) aggravated assault -- no longer qualify as violent felonies and, therefore, he is no longer an armed career criminal. (ECF No. 1 at 4.) The government responded to Petitioner's § 2255 Motion on November 28, 2016. (See ECF No. 22; ECF No. 23.) Petitioner replied on December 7, 2016. (ECF No. 24.)

         Between January 7, 2016, and August 15, 2016, Petitioner filed four motions: (1) Motion to Supplement Rule 15(a)(2) Previous 2255(f)(3) (“First Motion to Supplement”), filed on January 7, 2016 (ECF No. 6); (2) Motion Pursuant to 28 U.S.C. § 2243 Based on Motion to Show Cause (“§ 2243 Motion”), filed on May 2, 2016 (ECF No. 7); (3) Motion to Compel and Motion for Writ of Mandamus and Request to Proceed In Forma Pauperis (“Motion to Compel”), filed on August 15, 2016 (ECF No. 12); (4) Motion to Supplement Rule 15(a)(2) Previous 2255(f)(3) (“Second Motion to Supplement”), filed on August 15, 2016 (ECF No. 13).

         On September 15, 2016, the Court entered an Order addressing Petitioner's motions. (ECF No. 14.) The Court GRANTED the First and Second Motions to Supplement, GRANTED IN PART and DENIED IN PART the § 2243 Motion, and DENIED without prejudice the Motion to Compel. (Id. at 85.)

         On November 21, 2016, Petitioner filed his Objection to Presentencing. (ECF No. 21.) The Objection to Presentencing raises additional arguments about whether Petitioner's prior convictions qualify as violent felonies under the ACCA. (Id. at 100-06.) It also raises, for the first time, Petitioner's challenge to his prior conviction for setting fire to personal property. (Id. at 97-100.)

         On January 30, 2017, Petitioner filed his Request for Status Report. (ECF No. 25.) On October 2, 2017, Petitioner filed his Motion to Compel. (ECF No. 27.) On November 15, 2017, Petitioner filed his Motion to Vacate. (ECF No. 28.) Each of the last three motions asks the Court to rule on Petitioner's § 2255 Motion.

         II. Timeliness

         Petitioner challenges his sentence based on Johnson, which provides a new rule of constitutional law made retroactively applicable to cases on collateral review. Johnson, 135 S.Ct. at 2563; Welch, 136 S.Ct. at 1268. Petitioner's § 2255 Motion alleges constitutional error that resulted in a sentence that now exceeds the statutory limits applicable to his offense. Johnson was decided on June 26, 2015, and Petitioner filed his § 2255 Motion on July 13, 2015. (ECF No. 1.) Petitioner filed his Motion within one year of Johnson. Petitioner's § 2255 Motion is timely. See 28 U.S.C. § 2255(f)(3).

         Petitioner's Objection to Presentencing raises, for the first time, Petitioner's challenge to his prior conviction for setting fire to personal property. (ECF No. 21 at 97-100.) Petitioner's Objection to Presentencing was filed on November 21, 2016, more than one year after Johnson. (ECF No. 21.) The Court construes Petitioner's Objection to Presentencing as an amended § 2255 motion. Petitioner's Objection to Presentencing challenges a different prior conviction under Johnson. Petitioner's Objection to Presentencing relates back to his original § 2255 motion and thus is timely.

         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. In his § 2255 Motion, Petitioner argues that three of his prior convictions -- those for (1) attempt to commit a felony - aggravated assault; (2) shooting a missile calculated to produce death or great bodily harm into an occupied dwelling; and (3) aggravated assault -- are no longer predicate violent felonies after Johnson. (ECF No. 1 at 4.) In his Opposition to Presentencing, Petitioner argues that his conviction for setting fire to personal property is no longer a violent felony. (ECF No. 21 at 97-100.) Petitioner contends that he is entitled to be resentenced because, after Johnson, he no longer has at least three prior ACCA-predicate convictions and, therefore, is no longer an armed career criminal. (ECF No. 1-1 at 15-16.)

         A. 2004 Tennessee ...


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