United States District Court, E.D. Tennessee, Chattanooga
DESMOND L. TURNER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
L. COLLIER UNITED STATES DISTRICT JUDGE.
inmate Desmond Turner has filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
Respondent has filed a response in opposition to the motion.
Having considered the pleadings and the record, along with
the relevant law, the Court finds that it is unnecessary to
hold an evidentiary hearing, and Turner's § 2255
motion will be denied.
BACKGROUND FACTS AND PROCEDURAL HISTORY
2014, Turner pleaded guilty and was convicted of committing a
Hobbs Act robbery in violation of 18 U.S.C. § 1951 and
brandishing a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(Doc. 32 in No. 1:13-CR-62). On March 4, 2014, this Court
entered its judgment sentencing Turner to an aggregate term
of 111 months' imprisonment, consisting of 27 months for
the robbery, and the statutorily-mandated minimum consecutive
term of 84 months for the firearms offense (id.).
Turner did not appeal.
2016, Turner filed a motion for the appointment of counsel
and the instant pro se § 2255 motion for a lesser
sentence in light of the holding of Johnson v. United
States, which invalidated the residual clause of the
Armed Career Criminal Act (“ACCA”). Johnson
v. United States, 135 S.Ct. 2551, 2563 (2015) (Doc. 1).
The Court ordered the Government to respond, and the
Government filed its response on July 28, 2016 (Doc. 3). The
following day, on July 29, 2016, the Court received from
Turner a motion seeking to proceed in forma pauperis
in this action (Doc. 5). These matters are ripe for review.
defendant has been convicted and exhausted his appeal rights,
a court may presume that “he stands fairly and finally
convicted.” United States v. Frady, 456 U.S.
152, 164 (1982). A court may grant relief under 28 U.S.C.
§ 2255, but the statute “does not encompass all
claimed errors in conviction and sentencing.”
United States v. Addonizio, 442 U.S. 178, 185
(1979). Rather, collateral attack limits a movant's
allegations to those of constitutional or jurisdictional
magnitude, or those containing factual or legal errors
“so fundamental as to render the entire proceeding
invalid.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (citation omitted); see
also 28 U.S.C. § 2255(a).
residual clause of the ACCA struck down as unconstitutionally
vague in Johnson defined a “violent
felony” as “any crime punishable by imprisonment
for a term exceeding one year” that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii); Johnson, 135 S.Ct. at 2563. Turner
claims that the reasoning of Johnson also
invalidated the residual clause in § 924(c)(3)(B)'s
definition of a crime of violence, which requires vacatur of
his § 924(c) conviction (Doc. 1 p. 4).
18 U.S.C. § 924(c), it is unlawful to use or carry a
firearm during and in relation to a “crime of violence
or drug trafficking crime, ” or to possess a firearm
“in furtherance of any such crime.” 18 U.S.C.
§ 924(c)(1)(A). A “crime of violence” under
§ 924(c) is “an offense that is a felony
and” either (1) “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another” (the
“use-of-force clause”); or (2) “by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense” (the “residual
clause”). 18 U.S.C. § 924(c)(3).
Sixth Circuit has expressly held that Johnson's
reasoning does not invalidate the differently-worded residual
clause of § 924(c)(3)(B). United States v.
Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016). Moreover,
because the Supreme Court expressly stated in
Johnson that it was not invalidating the ACCA's
use-of-force clause, Johnson has no application to
the similarly-worded use-of-force clause in §
924(c)(3)(A). Johnson, 135 S.Ct. at 2563
(“Today's decision does not call into question
application of the [ACCA] to the four enumerated offenses, or
the remainder of the Act's definition of a violent
felony.”). Therefore, even if Johnson did
invalidate the residual clause of § 924(c)(3)(B),
Turner's conviction would nonetheless be valid under
§ 924(c)(3)(A)'s use-of-force clause. A Hobbs Act
robbery by definition involves the taking of property
“by means of actual or threated force, or violence, or
fear of injury, ” and therefore, categorically involves
the use, attempted use, or threatened use of such force. 18
U.S.C. § 1951(b)(1); see also, e.g., United
States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017)
(holding Hobbs Act robbery is a crime of violence under
§ 924(c)'s use-of-force clause). Accordingly, the
Supreme Court's holding in Johnson does not
provide Turner with a basis on which to challenge the
validity of his convictions.
has filed a motion seeking the appointment of counsel to
assist him in his § 2255 proceedings (Doc. 2). However,
this Court has found that Turner's allegations are
meritless, and that an evidentiary hearing is not warranted.
Accordingly, Turner's motion for the appointment of
counsel will be denied. See 18 U.S.C. §
3006A(a)(2)(B) (authorizing court to appoint counsel for
§ 2255 applicant when it “determines that the
interests of justice so require”); Rule 8(c) of the
Rules Governing Section 2255 Proceedings in the United States
District Courts (requiring court to appoint attorney to
indigent defendant in § 2255 proceeding if evidentiary
hearing is warranted).
pending before the Court is Turner's motion to proceed
in forma pauperis in this action. However, because
there is no filing fee associated with filing a § 2255
motion, Turner's motion to proceed in forma
pauperis (Doc. 4) will be DENIED as
moot. See Rule 3 of the Rules Governing Section 2255
Proceedings for the United States District Courts, 1976