United States District Court, E.D. Tennessee, Knoxville Division
W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE
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]. 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.
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].
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].
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].
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].
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.].
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.
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.
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.
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].
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].
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.
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. § 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 ...