United States District Court, E.D. Tennessee
SHERVON S. JOHNSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
A. VARLAN UNITED STATES DISTRICT JUDGE.
Shervon S. Johnson 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 Petitioner's § 2255
motion will be denied.
BACKGROUND FACTS AND PROCEDURAL HISTORY
1995, a jury convicted Petitioner of conspiring to violate
federal law in violation of 18 U.S.C. § 371; aiding and
abetting a Hobbs Act robbery in violation of 18 U.S.C. §
1951 and 2; aiding and abetting the use of a firearm during
an in relation to a crime of violence in violation of 18
U.S.C. § 924(c); aiding and abetting the possession of a
machine gun in violation of 18 U.S.C. § 922(o); and
possessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g). See United States v. Richmond, Nos.
96-5879, 96-5880, 96-5886, 1997 WL 720469, at *1 (6th Cir.
Nov. 12, 1997). Petitioner was sentenced to an aggregate term
of 430 months' imprisonment. Id. The Sixth
Circuit affirmed Petitioner's convictions and sentence,
and the Supreme Court denied certiorari. Id. at *3;
Richmond v. United States, 523 U.S. 1032 (1998).
2016, Petitioner filed the instant motion seeking a lesser
sentence in light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
which invalidated the residual clause of the Armed Career
Criminal Act (“ACCA”). Johnson, 135
S.Ct. at 2563. In compliance with this Court's order to
file a response, the United States filed its response in
opposition to the motion on August 11, 2016 [Doc. 5].
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).
Section 924 conviction
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.
According to Petitioner, Johnson's reasoning
also invalidated the residual clause in §
924(c)(3)(B)'s definition of a crime of violence, which
requires vacatur of his § 924(c) convictions [Doc. 1 p.
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),
Petitioner'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
Petitioner with a basis on which to challenge the validity of
Calculation of time
also complains that he “is not being credited with the
jail time served while in the custody of the State of
Tennessee Department of Corrections, ” and that, in his
view, he should receive credit for all time in custody since
his federal offense [Doc. 1 p. 10]. However, “the power
to grant credit for time served lies solely with the Attorney
General and the Bureau of Prisons” (“BOP”).
United States v. Crozier, 259 F.3d 503, 520 (6th
Cir. 2001). Moreover, Petitioner cannot attack the manner in
which his sentence was calculated by the Bureau of Prisons in
an action under 28 U.S.C. § 2255. See, e.g., United
States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991)
(holding where defendant “is challenging the manner in
which the sentence was being executed. . . Section 2255 does
not apply”); see also Woody v. Marberry, 178
Fed.Appx. 468, ...