United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER JUDGE
the court is the Motion to Vacate, Set Aside, or Correct
Sentence in Accordance with 28 U.S.C. § 2255 (Doc. No.
1) filed by movant Howard Coleman. Coleman is a federal
prisoner who seeks to vacate and reduce the sentence entered
upon his 2006 criminal conviction in United States v.
Conyers et al., No. 3:09-cr-00240 (M.D. Tenn. Jan. 1.
2006) (Judgment, Doc. No. 2293),  based on Johnson v.
United States, 135 S.Ct. 2551 (2015). The motion will be
granted in light of the Supreme Court's decision in
United States v. Davis, No. 18-431 (slip op.) (June
February 4, 2013, Coleman pleaded guilty to the three charges
against him in the multi-count Ninth Superseding Indictment
against numerous co-defendants. These three charges consisted
of (1) conspiracy to interfere with commerce by robbery and
extortion and to commit and threaten physical violence
against another person and his property, in violation of 18
U.S.C. §§ 1951 and 2 (“Hobbs Act
conspiracy”) (Count Thirteen); (2) possessing a firearm
during and in relation to a crime of violence (specifically,
“conspiracy to commit a Hobbs Act extortion and
robbery”), in violation of 18 U.S.C. § 924(c) and
2 (Count Fourteen); and (3) possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 2,
922(g)(1) and 924 (Count Twenty-One). According to the
Petition to Enter a Plea of Guilty and as announced in open
court at the plea hearing on February 4, 2013, Coleman
reached an agreement under Rule 11(c)(1)(C) of the Federal
Rules of Criminal Procedure with the government to a total
sentence of 23 years plus 5 years of supervised release: 18
years on Count Thirteen, 10 Years on Count Twenty-One, to run
concurrently with the sentence on Count Thirteen, and 5 years
on Count Fourteen, to run consecutively to the 18 years on
Count Thirteen. In addition, as also set forth in the plea
petition, Coleman agreed to plead guilty to two charges of
Hobbs Act robbery/extortion in violation of 18 U.S.C. §
1951 (the “Lebanon Pike and Fat Chris Robberies”)
charged in the Felony Information in No. 3:13-cr-00087, and
to a sentence of 18 years on each of those robberies, to run
concurrently to each other and concurrently with the 18-year
sentence on Count Thirteen in No. 3:09-cr-00240, for a total
effective sentence of 23 years on all counts. (Crim. Doc. No.
1911, at 4.)
indicated in the plea petition, Coleman was aware that Count
Fourteen required a mandatory minimum consecutive sentence of
5 years. Counts Thirteen and Twenty-One had 20-year and
10-year maximums, respectively. (Id. at 1-2.) The
written plea petition itself does not contain a waiver of
appellate rights or the right to bring a post-conviction
challenge. At the plea hearing, conducted before Senior Judge
John T. Nixon (now retired), the Assistant United States
Attorney represented to the court that Coleman, along with
the three other co-defendants who entered pleas the same day,
had agreed to waive their appellate rights. The prosecutor
stated on the record that the plea agreement with each
a waiver of appellate rights and postconviction rights
applicable under the plea agreement as to each of the four
defendants. . . .
Regarding sentencing, each defendant is aware that 18 U.S.C.
3742 generally affords the defendant the right to appeal the
sentence imposed. Acknowledging this, each defendant
knowingly waives the right to appeal the sentence agreed to
in that defendant's particular plea agreement pursuant to
Federal Rule of Civil Procedure 11(c)(1)(C). Each defendant
also knowingly waived their right to challenge that agreed
sentence in any collateral attack, including, but not limited
to, a motion brought pursuant to 28 U.S.C. 2255 and/or 2241
and/or 18 U.S.C. 3582(c).
(Plea Hr'g Tr., Doc. No. 6-1, at 54-55.) In Judge
Nixon's colloquy with each defendant, however, the
defendants confirmed their understanding that they were
waiving their right to go to trial, but they were not asked
to confirm their understanding that they were waiving their
right to bring a collateral challenge to their
was sentenced on May 17, 2013 to 23 years in accordance with
the agreement documented in the plea petition and at the plea
hearing. Judgment was entered on June 17, 2013. (Crim. Doc.
No. 2293.) Coleman did not appeal his conviction or sentence.
Neither party ordered a transcript of the sentencing hearing.
filed his § 2255 motion to vacate on June 27, 2016,
arguing that his conviction on Count Fourteen, for carrying a
weapon in connection with a crime of violence, is invalid,
because conspiracy to commit a Hobbs Act extortion and
robbery could only qualify as a crime of violence under the
“residual clause” of § 924(c), which is
unconstitutional in light of Johnson. (Doc. No. 1.)
Coleman requested that his motion be held in abeyance pending
the Supreme Court's review of United States v.
Taylor, 814 F.3d 340 (6th Cir. 2016).
government filed a Response (Doc. No. 6), arguing that (1)
Coleman waived his right to bring a § 2255 motion; (2)
his argument that the so-called residual clause in §
924(c)(3) falls within the scope of Johnson is
foreclosed by binding Sixth Circuit precedent; and (3) Hobbs
Act robbery satisfies the physical-force clause of §
28 U.S.C. § 2255
movant brings this action under 28 U.S.C. § 2255.
Section 2255 provides a statutory mechanism for ...