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Coleman v. United States

United States District Court, M.D. Tennessee, Nashville Division

July 2, 2019

HOWARD COLEMAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER JUDGE

         Before 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), [1] 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 24, 2019).

         I. Procedural Background

         On 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.)

         As 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 defendant included

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 sentence.[2]

         Coleman 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.

         Coleman 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).

         The 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 § 924(c)(3)(A).

         II. Legal Framework

         A. 28 U.S.C. § 2255

         The movant brings this action under 28 U.S.C. § 2255. Section 2255 provides a statutory mechanism for ...


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