United States District Court, M.D. Tennessee, Nashville Division
A.TRAUGER UNITED STATES DISTRICT JUDGE
the court is Timothy Beach's Motion to Vacate, Set Aside,
or Correct Sentence in Accordance with 28 U.S.C. § 2255
(Doc. No. 1), seeking to vacate the sentence entered upon his
2008 criminal conviction in United States v. Beach,
No. 3:07-cr-00029 (M.D. Tenn. April 9 2008) (Judgment, Doc.
No. 48),  under Johnson v. United States,
135 S.Ct. 2551 (2015), which invalidated the so-called
“residual clause” of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e). (Doc. No.
1.) For the reasons set forth herein, the motion will be
January 31, 2007, a federal grand jury indicted Beach on one
charge of being a previously convicted felon in possession of
firearms, in violation of 18 U.S.C. §§ 922(g)(1)
and 924. (Crim. Doc. No. 1.) On January 22, 2008, Beach
submitted a written Petition to Enter Plea of Guilty. (Crim.
Doc. No. 39.) At the sentencing hearing conducted on April 7,
2008, Beach, through counsel, objected to sentencing under
the ACCA on the basis that the prior convictions were not
alleged in the Indictment, but he did not object to the
characterization of any of the prior convictions as predicate
felonies under the ACCA.
ACCA predicate felonies identified in the Presentence Report
included Tennessee convictions for (1) second degree murder
(conviction date, June 13, 1978); (2) aggravated sexual
battery (conviction date, December 14, 1987); (3) assault
with intent to commit murder (conviction date, December 14,
1987); (4) kidnapping (conviction date, August 14, 2003); and
(5) robbery (conviction date, August 14, 2003). (Crim. Doc.
No. 51 ¶ 21.)
court overruled the defendant's objections to sentencing
under the ACCA and sentenced him on April 7, 2008 to 180
months in prison, to be followed by five years of supervised
release. Judgment was entered on April 9, 2008. (Crim. Doc.
No. 48.) Beach appealed the ACCA enhancement on the grounds
that it had not been alleged in the Indictment, but the Sixth
Circuit affirmed the judgment and sentence. United States
v. Beach, 325 Fed.Appx. 402 (6th Cir. 2009).
filed his Motion to Vacate, through counsel, on June 3, 2016,
citing Johnson and arguing that four of his five
prior convictions would only qualify as predicate offenses
under the now-invalidated residual clause of the ACCA. (Doc.
No. 1.) The government responded (Doc. No. 9), arguing that
Johnson did not affect Beach's sentencing under
the ACCA. The movant, through counsel, filed a Reply. (Doc.
does not dispute that his robbery conviction continues to
qualify as a crime of violence. The government does not
address the kidnapping conviction but argues that the other
three convictions-for second degree murder, aggravated sexual
battery, and assault with intent to commit murder-all qualify
as crimes of violence under the “use of force”
clause of the ACCA. As set forth below, the court finds that,
besides robbery, the convictions for second degree murder and
assault with intent to commit murder categorically qualify as
crimes of violence under the ACCA. Because the movant has the
requisite three prior convictions without them, the court
does not address the question of whether the kidnapping and
aggravated sexual battery convictions would also qualify as
violent felonies for purposes of the ACCA.
28 U.S.C. § 2255
movant brings this action under 28 U.S.C. § 2255.
Section 2255 provides a statutory mechanism for challenging
the imposition of a federal sentence:
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
28 U.S.C. § 2255(a). In order to obtain relief under
§ 2255, a petitioner “‘must demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury's verdict.'” Humphress v.
United States, 398 F.3d 855, 858 (6th Cir. 2005)
(quoting Griffin v. United States, 330 F.3d 733, 736
(6th Cir. 2003)). A motion under § 2255 is ordinarily
subject to a one-year statute of limitations, running from
the date the underlying conviction became final. 28 U.S.C.
The ACCA and Johnson v. United States
pleaded guilty to a violation of 18 U.S.C. § 922(g)(1),
which makes it unlawful for a previously convicted felon to
possess any firearm or ammunition that has been transported
in interstate commerce. The ACCA, 18 U.S.C. § 924(e),
mandates a minimum sentence of fifteen years for any person
convicted under § 922(g)(1) who has “three
previous convictions . . . for a violent felony or a serious
drug offense.” The ...