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McGee v. United States

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

May 10, 2018

FRANKLIN ROOSEVELT MCGEE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION PURSUANT TO 28 U.S.C. §2255 AND GRANTING A CERTIFICATE OF APPEAL ABILITY

          JAMES D. TODD UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion pursuant to 28 U.S.C. § 2255 filed by the Movant, Franklin Roosevelt McGee. For the reasons stated below, the Court DENIES McGee's § 2255 motion.

         On July 16, 2007, a federal grand jury returned a one-count indictment charging McGee with possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g). (No. 07-10077, Crim. ECF No. 1.) McGee entered a guilty plea, pursuant to a written plea agreement, on February 19, 2008. (Id., Crim. ECF Nos. 29, 30 & 32.) At the sentencing hearing on May 21, 2008, the Court determined, based on his prior felony convictions, that McGee qualified for an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).[1] See also U.S.S.G. § 4B1.4. He was sentenced to a 180-month term of imprisonment and a three-year period of supervised release. (No. 07-10077, Crim. ECF Nos. 37 & 39.)

         On appeal, the Sixth Circuit granted the parties' joint motion to remand the case for re-sentencing in light of Begay v. United States, 553 U.S. 137 (2008) and United States v. Baker, 559 F.3d 443 (6th Cir. 2009). United States v. McGee, No. 08-5689 (6th Cir. Feb. 26, 2010). At the re-sentencing hearing on April 7, 2011, the Government conceded, based on the state of the law after Begay and Baker, that McGee's 2003 conviction for reckless aggravated assault (Presentence Report (PSR) ¶ 29) could not be counted as a violent felony under the ACCA. (No. 07-10077, Re-Sent'g Tr., Crim. ECF No. 89 at PageID 208.) In addition, this Court concluded, over the objection of the Government, that a 1986 conviction for aggravated assault (PSR ¶ 23) also could have involved reckless conduct and did not qualify as an ACCA predicate. (Crim. ECF No. 89 at PageID 197-207, 221-22.) However, the Court found that McGee's 1995 convictions for aggravated robbery, felony escape and aggravated assault (PSR ¶ 27) qualified as separate violent felonies “committed on occasions different from one another” under the ACCA. (Crim. ECF No. 89 at PageID 222-24.) Consequently, the Court again sentenced McGee to a 180-month term of imprisonment. (Crim. ECF Nos. 80 & 82.) The Sixth Circuit dismissed McGee's appeal. McGee v. United States, 516 Fed.Appx. 515 (6th Cir. 2013).

         On March 4, 2014, McGee filed a timely motion pursuant to 28 U.S.C. § 2255, which was denied. McGee v. United States, No. 14-1052-JDT-egb (W.D. Tenn. Aug. 18, 2014). He did not file an appeal.

         The Sixth Circuit subsequently granted McGee's application for permission to file a second or successive § 2255 motion challenging the constitutionality of his sentence under Johnson v. United States, 135 S.Ct. 2551 (2015), and transferred the matter to this Court. In re McGee, No. 15-6232 (6th Cir. May 19, 2016). The Government filed a response to the motion as directed by the Court (ECF No. 11), and McGee has filed a reply (ECF No. 14).

         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) (internal quotation marks omitted).

         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 § 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 order.” Id.

         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 “elements clause” or “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” (the “residual clause”). Id., § 924(e)(2)(B)(i)-(ii). In Johnson v. United States, the Supreme Court held the ACCA's residual clause is unconstitutionally vague and that increasing a defendant's sentence under the clause is, 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).

         McGee argues in his § 2255 motion that after the decision in Johnson, his only ACCA predicate is the 1995 Tennessee conviction for aggravated robbery. He contends he no longer qualifies as an armed career criminal; therefore, he asks the Court to vacate his sentence and sentence him to time served.

         The Government does not contest McGee's assertion that his 1995 conviction for felony escape may no longer be considered because it would now qualify as an ACCA predicate only under the invalidated residual clause. However, the Government contends that under current law all three of McGee's prior convictions for aggravated assault may now be counted under the use-of-force clause to qualify him as an armed career criminal.

         As a preliminary matter, McGee contends, based on the law-of-the-case doctrine, that the Government waived any argument that his 1986 aggravated assault conviction should be counted under the ACCA when it failed to cross-appeal the Court's ruling on that issue. However, given the seismic shifts that have occurred in the law governing whether a particular conviction qualifies as an ACCA predicate, the Court will consider all of the arguments made by the parties with regard to McGee's prior convictions.

         In order to determine whether a prior conviction is a violent felony under the ACCA, courts must use the “categorical approach” prescribed in Taylor v. United States, 495 U.S. 575 (1990). Under that approach, courts look “only to the statutory definitions of the prior offense, and not to the particular facts underlying those convictions.” Id. at 600. If a statute's elements are the same as the “generic” offense, the conviction can be an ACCA predicate. Descamps v. United States, 570 U.S. 254, 261 (2013) (citing Taylor). However, if the statute “sweeps more broadly than ...


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