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Banks v. United States

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

April 25, 2018

DANNY LEE BANKS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

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

         Before the Court is Danny Lee Banks's April 22, 2016 pro se motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (the “§ 2255 Motion”). (Cv. ECF No. 1.) Banks seeks relief under Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson”). On August 3, 2016, the Court ordered the United States to respond. (Cv. ECF No. 5.) The United States responded on August 4, 2016 (the “Response”). (Cv. ECF No. 7.) Banks replied on August 25, 2016 (the “Reply”). (Cv. ECF No. 9.) On September 20, 2016, the Court ordered the United States to file an additional response. (Cv. ECF No. 10.) The United States filed a supplemental response on September 26, 2016 (the “Supplemental Response”). (Cv. ECF No. 11.) Banks filed a second reply on October 17, 2016 (the “Second Reply”).[1](Cv. ECF No. 13.)

         On January 17, 2017, Banks filed a motion for leave to supplement record with additional materials (the “Supplemental Record”). (Cv. ECF Nos. 14-15.) Banks filed a second motion for leave to supplement the record with additional materials on October 18, 2017 (the “Second Supplemental Record”). (Cv. ECF No. 18.) Both motions for leave to supplement the record are GRANTED.

         On July 10, 2017, Banks filed a motion for a just, speedy, and inexpensive determination of his case. (Cv. ECF No. 17.) On January 8, 2018, Banks filed a motion to appoint counsel. (Cv. ECF No. 19.) Both motions are DENIED as MOOT.

         For the following reasons, the § 2255 Motion is DENIED.

         I. Background

         On June 9, 1992, a federal grand jury in the Western District of Tennessee returned a four-count indictment charging Banks with the following violations of 18 U.S.C. § 922(g): (1) knowingly possessing a firearm as a convicted felon, on November 26, 1991; (2) knowingly possessing ammunition as a convicted felon, on November 26, 1991; (3) knowingly possessing a firearm as a convicted felon, on December 27, 1991; and (4) knowingly possessing ammunition as a convicted felon, on December 27, 1991. (Cr. ECF No. 1.)

         The United States subsequently dismissed Counts 3 and 4, related to the December 27, 1991 incident, and proceeded to trial on Counts 1 and 2, related to the November 26, 1991 incident. (Cr. ECF No. 47.) A jury found Banks not guilty on Count 1 and guilty on Count 2. (Cr. ECF Nos. 49, 53.)

         The United States Probation Office prepared a Presentence Investigation Report (the “PSR”). (PSR at 1.) The PSR calculated Banks's guideline sentencing range pursuant to the 1994 edition of the United States Sentencing Commission Guidelines Manual (the “U.S.S.G.”). (Id. at 4.)

         Banks's base offense level was 24. (Id.) There was a two-level enhancement for obstruction of justice because Banks committed perjury during his trial. (Id.) Banks's adjusted offense level subtotal was 26. (Id.)

         According to the PSR, Banks was an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”), and subject to a sentencing enhancement. (Id. at 4-5.) The PSR identified numerous prior felonies as ACCA-qualifying convictions. (Id. at 4.) The ACCA enhancement resulted in a total offense level of 34. (Id. at 4-5.) Banks's criminal history category was VI. (Id. at 20.) His recommended guideline range was 262-327 months. (Id.) Banks's statutory minimum sentence was 180 months, and his statutory maximum sentence was life. (Id.)

         Banks was sentenced on April 5, 1996. (Cr. ECF No. 71.) The court adopted the PSR's factual findings and calculated Banks's total offense level, criminal history category, and guideline sentencing range consistently with the PSR. (Cr. ECF No. 72.) At Banks's sentencing hearing, the court found that Banks's criminal history category did not reflect the seriousness of his prior criminal conduct. United States v. Banks, No. 96-5597, 1997 WL 561421, at *2 (6th Cir. Sept. 9, 1997) (discussing Banks's sentencing proceedings). The court explained: “Mr. Banks is a threat to society and will continue to be a threat to society, and I feel that I would be remiss in my obligations if I did not do the maximum that I could to protect the public from Mr. Banks' future criminal activity.” Id. The court departed upward and sentenced Banks to life in prison. Id.

         Banks appealed, challenging only the court's upward departure. Id. at *3. On September 9, 1997, the United States Court of Appeals for the Sixth Circuit affirmed. Banks, 1997 WL 561421.

         II. Standard of Review for § 2255 Motions

         Pursuant 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 the sentence.

         “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) (quotation marks omitted). A prisoner must file his § 2255 motion within one year of 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).

         A § 2255 motion is not a substitute for a direct appeal. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). “[C]laims not raised on direct appeal, ” which are thus procedurally defaulted, “may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003); see also, e.g., El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a petitioner may obtain review of a procedurally defaulted claim by demonstrating his “actual innocence.” Bousley v. United States, 523 U.S. 614, 622-23 (1998).

         After a § 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 Section 2255 Proceedings for the United States District Courts (“§ 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 order.” Id. The § 2255 movant is entitled to reply to the government's response. Rule 5(d), § 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, § 2255 Rules.

         III. Analysis

         A. Basis and Timeliness of § 2255 Motion

         Banks challenges his sentence based on Johnson, which provides a new rule of constitutional law made retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Banks's § 2255 Motion alleges constitutional error that resulted in a sentence that now exceeds the statutory limits applicable to his offense. See Short, 471 F.3d at 691. Johnson was decided on June 26, 2015, and Banks filed his Motion on April 22, 2016. (Cv. ECF No. 1.) Banks filed his Motion within one year of Johnson. Banks's Motion is timely. See 28 U.S.C. § 2255(f)(3).[2]

         B. ACCA “Violent Felony” Framework

         Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) who has three previous convictions for violent felonies or serious drug offenses is subject to an enhanced mandatory minimum sentence of 180 months' imprisonment, 18 U.S.C. § 924(e), with a maximum sentence of life, United States v. Little, 61 F.3d 450, 454 (6th Cir. 1995) (citing United States v. Wolak, 923 F.2d 1193, 1199 (6th Cir. 1991)). Without the ACCA-enhancement, a defendant convicted ...


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