United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING MOTION PURSUANT TO 28 U.S.C. §
D. TODD UNITED STATES DISTRICT JUDGE.
24, 2016, Finis Ewin Hill filed a motion pursuant to 28
U.S.C. § 2255. (ECF No. 1.) A status conference was held
on August 10, 2017 (ECF No. 8), and the United States
subsequently filed an answer. (ECF No. 9.) Hill also filed a
reply. (ECF No. 12.) For the reasons stated below, the Court
GRANTS Hill's § 2255 motion.
26, 2004, Hill entered a guilty plea to one count of
possessing a firearm after having been convicted of a felony,
in violation of 18 U.S.C. § 922(g). (No. 03-10101, Crim.
ECF Nos. 17 & 18.) At sentencing this Court determined,
based on a conviction for aggravated burglary and two
convictions for aggravated assault, that Hill qualified for
an enhanced sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). See also U.S.S.G.
§ 4B1.4. He was sentenced to a 222-month term of
imprisonment and a three-year term of supervised release.
(No. 03-10101, Crim. ECF Nos. 26 & 29.) Hill filed a
direct appeal, and the Court of Appeals affirmed the
conviction but vacated the judgment and remanded for r
e-sentencing in accordance with United States v.
Booker, 543 U.S. 220 (2005).
States v. Hill, 150 F. App'x 416 (6th Cir. 2005). On
re-sentencing, this Court sentenced Hill under the ACCA to a
221-month term of imprisonment and three years of supervised
release. (No. 03-10101, Crim. ECF Nos. 43 & 44.) The
Sixth Circuit affirmed. United States v. Hill, 207
F. App'x 599 (6th Cir. 2006), cert. denied, 549
U.S. 1026 (2006).
to 28 U.S.C. § 2255(a),
[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
“A prisoner seeking relief under 28 U.S.C. § 2255
must allege either (1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law that was so fundamental as to render
the entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (internal
quotation marks omitted).
§ 2255 motion is filed, it is reviewed by the Court and,
“[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion.” Rule 4(b), Rules Governing § 2255
Proceedings (“§ 2255 Rules”). “If the
motion is not dismissed, the judge must order the United
States attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
sole issue raised in Hill's § 2255 motion is whether
his sentence is constitutionally invalid under Johnson v.
United States, 135 S.Ct. 2551 (2015). The ACCA requires
a fifteen-year sentence for a felon who is convicted of
unlawfully possessing a firearm in violation of 18 U.S.C.
§ 922(g) and who has three prior convictions “for
a violent felony or a serious drug offense, or both.”
18 U.S.C. § 924(e)(1). The ACCA defines “violent
felony” as “any crime punishable by imprisonment
for a term exceeding one year” that (1) “has as
an element the use, attempted use, or threatened use of
physical force against the person of another” (the use
of force clause), (2) “is burglary, arson, or
extortion, involves use of explosives” (the enumerated
offenses clause), or (3) “otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” Id., § 924(e)(2)(B)(i)-(ii).
The last part of the definition is commonly referred to as
the residual clause. In Johnson the Supreme Court
held the ACCA's residual clause was unconstitutionally
vague and that increasing a defendant's sentence under
the clause was, therefore, a denial of due process. 135 S.Ct.
at 2563. The Supreme Court later held the decision in
Johnson was retroactive and thus applicable to cases
on collateral review. Welch v. United States, 136
S.Ct. 1257 (2016).
time of Hill's re-sentencing, it was the law in the Sixth
Circuit that Tennessee aggravated burglary qualified as a
categorical violent felony under the ACCA's enumerated
offenses clause, not under the residual clause. See
United States v. Sawyers, 409 F.3d 732 (2005), cited
in United States v. Nance, 481 F.3d 882, 888 (6th Cir.
2007). However, the Sixth Circuit has now overruled
Nance in United States v. Stitt, 860 F.3d
854, 860-61 (6th Cir. 2017) (en banc). In Stitt, the
Court of Appeals held that “[b]ecause Tennessee's
aggravated-burglary statute is both broader than generic
burglary under the categorical approach and indivisible, a
conviction under the statute does not count as a violent
felony under the ACCA.” Id. at 862. As a
result of that decision, Hill's prior Tennessee
conviction for aggravated burglary can no longer be used as a
predicate offense under either the enumerated offenses clause
or the residual clause of the ACCA. Hill therefore argues
that only two of his prior convictions, those for Tennessee
aggravated assault, now qualify as predicates under the ACCA.
Government contends, however, that Hill has another prior
Tennessee conviction that qualifies as a third ACCA predicate
under the use of force clause - namely, a 1985 conviction for
“Attempt to Commit a Felony, to wit: Rape.”
(Presentence Report (PSR), ¶ 12 at 6-7 & ¶ 33
at 10.) At the time, the offense of rape in Tennessee was not
categorically a violent felony because it could be
accomplished both with and without the use of force.
See Tenn. Code Ann. § 39-2-604 (repealed 1989).
Nevertheless, the Government argues that, using the modified
categorical approach to determine whether a conviction under
the divisible rape statute was a violent felony, see
Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276,
2283-85 (2013), the indictment for rape shows that Hill's
conviction involved the use of force or coercion and thus
qualifies under the ACCA. See Shepard v. United
States, 544 U.S. 13 (2013) (authorizing examination of a
limited set of documents to determine whether the defendant
admitted elements of the generic offense of burglary);
see also Johnson v. United States, 559 U.S. 133, 144
the Government is correct that the state-court indictment
charged Hill with rape by the use of force or coercion,
(see PSR ¶ 33 at 10), Hill was not convicted of
rape. Neither was he convicted of “Attempt to Commit a
Felony to wit: Rape.” As Hill has pointed out in his
reply, no such attempt statute exists. The offense of
conviction was merely Attempt to Commit a Felony.
(See ECF No. 9-1 at 4.) In 1984 and 1985, the
applicable attempt statute read:
If any person attempts to commit any felony or crime
punishable by imprisonment in the penitentiary, where the
punishment is not otherwise prescribed, he shall, on
conviction, be punished by imprisonment in the penitentiary
not exceeding five (5) years, or in the discretion of the
jury, by imprisonment in the county workhouse or jail not
more than one year, and by fine not exceeding five thousand
dollars ($5, 000).
Tenn. Code Ann. § 39-1-501 (repealed 1989). At that
time, it was generally understood that the elements of a
criminal attempt under § 39-1-501 were “(1) an
intent to commit a specific crime; (2) an overt act; and, (3)
failure to consummate the crime.” State v.
Jackson, 697 S.W.2d 366, 370-71 (Tenn. Crim. App. ...