United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR., UNITED STATES DISTRICT JUDGE
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”).(Cv. ECF No. 13.)
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.
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.
following reasons, the § 2255 Motion is DENIED.
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.)
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.)
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.)
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.
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.)
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.
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.
Standard of Review for § 2255 Motions
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
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
(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
(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).
§ 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).
§ 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, §
Basis and Timeliness of § 2255 Motion
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. §
ACCA “Violent Felony” Framework
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