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Melton v. United States

United States District Court, E.D. Tennessee, Knoxville Division

May 14, 2019

JASON JENNINGS MELTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Jason Jennings Melton's ("Petitioner's") pro se motion to vacate, set aside, orcorrecthis sentence pursuant to 28 U.S.C. § 2255. [Doc. 1; Criminal Docket ("Crim.") Doc. 131].[1] The United States has responded in opposition [doc. 4; crim. doc. 134]; and Petitioner has replied [docs. 9, 10]. Petitioner has also filed a supplement to his § 2255 motion [doc. 13]. Also before the Court are the government's motion to substitute attorney [doc. 2; crim. doc. 132], motion for extension of time to file response nuncpro tunc [doc. 5; crim. doc. 135], and Petitioner's motion for extension of time [doc. 7]. For the reasons below, the government's motion to substitute attorney [doc. 2; crim doc. 132] and motion for extension of time to file response nuncpro tunc [doc. 5; crim doc. 135] are GRANTED. Petitioner's motion for an extension of time [doc. 7] will likewise be GRANTED. Petitioner's § 2255 motion [doc. 1; crim. doc. 131 ] will be DENIED.

         I. BACKGROUND

         In 2010, Petitioner was charged in a single-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). [Crim. doc. 1]. After a protracted procedural history, involving numerous motions to suppress and motions in limine, Petitioner entered into a written plea agreement with the government, whereby he agreed to plead guilty to the sole count of the indictment. [Crim. doc. 113 at 1].

         In the plea agreement, Petitioner admitted that he was an armed career criminal, and therefore, faced a mandatory minimum term of 15 years' imprisonment. [Id.]. The plea agreement noted that the factual basis for the charge stemmed from the execution of a search warrant at Petitioner's residence, during which law enforcement found a sawed-off shotgun, loaded with five rounds of ammunition, and a .380 pistol. [Id. at 2]. The plea agreement also stated that Petitioner was a "multi-convicted felon," noting the following prior convictions: (1) 1999 convictions in Dekalb County for burglary, theft over $1, 000, and aggravated burglary; (2) a 2001 conviction in DeKalb County for aggravated burglary; (3) a 2001 conviction in DeKalb County for burglary; and (4) 2002 convictions for aggravated burglary and escape. [Id. at 2-3]. The plea agreement stated that "[p]ursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the defendant and the United States agree that a total sentence of imprisonment of one hundred and eighty (180) months ... is the appropriate disposition of this case." [Id. at 4].

         At the plea hearing, the government recited the elements of the offense, and, in reciting the punishment for the offense, noted that, "[b]ecause this defendant is an armed career criminal ... he faces a mandatory minimum term of 15 years[.]" [Crim. doc. 139 at 8-9]. The government also recited Petitioner's criminal history, as contained in the plea agreement. [Id. at 9-10]. Petitioner then agreed with the government's summary of the factual basis for the charge. [Id. at 11]. Petitioner then pleaded guilty to being a felon in possession of a firearm and ammunition, and testified that he understood what he was pleading guilty to, and was pleading guilty because he was in fact guilty. [Id.]. The Court found that Petitioner was fully competent and capable of entering an informed plea of guilty, and stated that the plea would be accepted by the Court. [Id. at 16].

         The presentence investigation report ("PSR") calculated Petitioner's adjusted offense level as 24, but noted that the offense of conviction was a violation of 18 U.S.C. § 922(g), and Petitioner had at least three prior convictions for a violent felony or serious drug offense, rendering him an armed career criminal, and resulting in an offense level of 33. [PSR ¶¶ 23-24]. The PSR subtracted three levels for acceptance of responsibility, resulting in a total offense level of 30. [Id. ¶¶ 25-27].

         In recounting Petitioner's criminal history, the PSR identified four Armed Career Criminal Act ("ACCA") predicate offenses: (1) a January 29, 1999 conviction for aggravated burglary in DeKalb County, Tennessee; (2) an April 10, 2000 conviction for aggravated burglary in DeKalb County, Tennessee; (3) a May 9, 2000 conviction for aggravated robbery in Cannon County, Tennessee; and (4) a May 9, 2000 conviction for aggravated burglary in Cannon County, Tennessee. [Id. ¶¶ 31-32, 34]. According to the PSR's factual recitation, both of the May 9, 2000 convictions stemmed from the same course of conduct. [Id. ¶ 34]. The PSR ultimately calculated Petitioner's criminal history score as 12, resulting in a criminal history category of V. [Id. ¶ 38]. Based on an offense level of 30 and criminal history category V, the PSR calculated a guideline range of 151 months to 188 months. [Id. ¶ 56]. However, the PSR noted that because the statutorily authorized minimum sentence of 15 years was greater than the minimum guideline range, the guideline range was 180 to 188 months. [Id.].

         The government filed a notice of no objections to the PSR. [Crim. doc. 116]. The government also filed a sentencing memorandum in which it requested that the Court impose the agreed-upon sentence. [Crim. doc. 117]. Petitioner's counsel also filed a sentencing memorandum, stating that Petitioner had no additional information to add to the sentencing circumstances of the case which was not contained in the PSR. [Crim. doc. 118].

         At sentencing, Petitioner stated that he had gone over the PSR with his attorney, and his attorney stated that Petitioner had no objections to the PSR. [Crim. doc. 130 at 3-4]. The probation officer then recited Petitioner's criminal history, as contained in the PSR. [Id. at 5]. The Court asked Petitioner whether he admitted these prior convictions and warned him that, such admission would preclude him from challenging these convictions later to attack his sentence. [Id.]. Petitioner affirmed the prior convictions. [Id. at 6]. The Court thus concluded that Petitioner should be sentenced as an armed career criminal. The Court also noted that, in accordance with Rule 11(c)(1)(C), the parties had recommended a term of imprisonment of 180 months. [Id.]. The Court ultimately accepted the parties' recommendation and sentenced Petitioner to 180 months' imprisonment. [Id. at 12]. Petitioner did not object to the sentence. [Id. at 16]. Judgment was entered on September 19, 2012. [Crim. doc. 120]. Petitioner did not file a direct appeal.

         On June 20, 2014, Petitioner mailed a letter to the Court, requesting a copy of his criminal docket sheet. [Crim. doc. 127]. Petitioner stated that he was "trying to file a 2255 appeal[.]" [Id.]. On March 18, 2015, Petitioner sent another letter to the Court, again requesting his docket sheet, and stating that he had "been working on a 2255 direct appeal conscerning [stet] the A.C.C. within the 6th District." [Crim. doc. 128]. Finally, on September 5, 2016, Petitioner sent another letter to the Court, inquiring about the progress of his "Johnson appeal" which he allegedly sent to the Court on "June 20" of 2016. [Crim. Doc. 129]. Petitioner acknowledged that the Court may have a high case load of Johnson v. United States, 135 S.Ct. 255 (2015) related cases, but expressed his concern at having heard no response, and requested an update. [Id.]. However, the docket does not reflect that the Court ever received any Johnson-based motion prior to this letter.

         On August 9, 2018, Petitioner filed the instant § 2255 motion. [Doc. 1]. In his motion, Petitioner asserts that his sentence constitutes plain error because Tennessee's aggravated burglary statute no longer constitutes a violent felony under the ACCA. [Id. at 1-2]. Petitioner asserts that the Sixth Circuit has held that Tennessee aggravated burglary cannot serve as an ACCA predicate offense, because it is not a violent felony under the ACCA post-Johnson. [Id. at 3-4, 7]. Petitioner thus asserts that his three prior convictions for Tennessee aggravated burglary are no longer ACCA predicates and he should not be deemed an armed career criminal. [Id. at 8]. Petitioner further asserts that his sentence should be reduced pursuant to 18 U.S.C. § 3582(c)(2), because the amended guideline range for his plea agreement has been lowered. [Id. at 9].

         On January 15, 2015, the government filed a response, arguing that Petitioner's § 2255 motion is untimely, because it was filed nearly six years after Petitioner's conviction became final, and over three years from June 26, 2015, the date that Johnson was decided. [Doc. 4 at 3]. The government asserts that Petitioner has not shown that he is entitled to equitable tolling, because he has not been pursuing his rights diligently. [Id. at 4]. The government also asserts that Petitioner's motion is barred by the collateral attack waiver in his plea agreement. [Id. at 5]. Finally, the government contends that Johnson does not affect the validity of Petitioner's sentence, as the Supreme Court has recently held that Tennessee aggravated burglary categorically qualifies as a violent felony under the ACCA's enumerated offenses clause. [Id. at 6-7].

         In early February, Petitioner filed a reply to the government's response. [Doc. 9]. Petitioner asserts that his § 2255 motion is timely because it was filed within one year of the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204(2018). [Id. at 1]. Petitioner further asserts that the government is incorrect in stating that, under current Sixth Circuit law, Tennessee aggravated burglary constitutes a violent felony under the enumerated offenses clause of the ACCA [Id.]. Petitioner also appears to seek permission to file a second or successive § 2255 motion. [Id. at 4]. Petitioner later filed another copy of this same reply. [Doc. 10].

         On March 19, 2019, Petitioner filed a supplement to his § 2255 motion, arguing that, under Hughes v. United States,138 S.Ct. 1765 (2018) he is eligible for relief under 18 U.S.C. ยง 3582(c)(2). [Doc. 13 at 1-2]. Petitioner asserts that the sentencing range calculated with the ACCA enhancement was the basis for the sentence imposed, and that range has since ...


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