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Norris v. United States

United States District Court, E.D. Tennessee, Chattanooga

July 10, 2019

MARK NORRIS, Petitioner,



         Federal inmate Mark Norris has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Respondent has filed a motion requesting to defer ruling, and Norris has moved to strike his response to the motion to defer. Having considered the pleadings and the record, along with the relevant law, the Court finds that there is no necessity for an evidentiary hearing[1], and Norris' § 2255 motion will be denied.


         On June 25, 2015, Norris pleaded guilty to possessing a firearm as a felon in violation of 18 U.S.C. § 922(g) [Docs. 17 and 18 in No. 1:15-CR-25]. Norris was on parole for multiple State offenses at the time he committed his federal offense, and his State parole was revoked prior to federal sentencing [Doc. 25 ¶ 84 in No. 1:15-CR-25]. A federal presentence investigation revealed that based on his two prior Georgia burglary convictions and over three dozen Tennessee aggravated burglary convictions, Norris was an armed career criminal under the Armed Career Criminal Act (“ACCA”) and was subject to an enhanced mandatory minimum of 180 months' imprisonment [Doc. 25 in No. 1:15-CR-25]. The United States moved for a downward departure, however, and in December 2015, the Court sentenced Norris to 151 months' imprisonment [Doc. 42 in No. 1:15-CR-25]. Norris did not appeal.

         In August 2017, Norris was convicted in a Tennessee state court for aggravated burglary and was sentenced to serve a term of 10 years' imprisonment, with the sentence to run concurrently with his previously imposed federal sentence [Doc. 60 p. 5 in No. 1:15-CR-25]. On December 18, 2017, Norris filed a motion seeking to reduce his federal sentence, which the Court construed as a § 2255 motion [Doc. 45 in No. 1:15-CR-25]. Counsel was appointed to assist Norris, and the Court provided Norris an opportunity to consent to the recharacterization of his motion, or to withdraw or amend his original pleading [Docs. 48 and 49 in No. 1:15-CR-25]. Norris consented to the characterization of his pleading as a § 2255 motion, requesting relief from his armed career criminal classification pursuant to the Sixth Circuit's decision in United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), which held that aggravated burglary is not a violent felony for purposes of the ACCA [Doc. 54 in No. 1:15-CR-25]. The United States was ordered to respond to Norris' motion, and it filed a motion to defer ruling pending a decision in Stitt by the United States Supreme Court [Doc. 56 in No. 1:15-CR-25].

         Norris initially did not oppose the motion to defer ruling [Doc. 58 in No. 1:15-CR-25] but later moved to strike his response, arguing that the Court should resentence Norris based on Stitt's then-controlling precedent [Doc. 59 in No. 1:15-CR-25]. Thereafter, in December 2018, Norris, who is housed in a State prison, filed a pro se motion requesting that his federal sentence be ordered to run concurrently with his State sentence. The Court finds these matters ripe for review.


         After a 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).


         The ACCA requires a 15-year minimum sentence for a felon who unlawfully possesses a firearm after having sustained three prior convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The statute defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “use-of-force clause”); (2) “is burglary, arson, or extortion, involves use of explosives” (the “enumerated-offense clause”); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another”) (the “residual clause”). 18 U.S.C. § 924(e)(2)(B).

         In Johnson v. United States, the Supreme Court struck down the residual clause of the ACCA as unconstitutionally vague and violative of due process. Johnson, 135 S.Ct. at 2563. However, Johnson did not invalidate “the remainder of the Act's definition of a violent felony.” Id. Therefore, for a § 2255 petitioner to obtain relief under Johnson, he must show that his ACCA-enhanced sentence was necessarily based on a predicate violent felony that only qualified as such under the residual clause. See, e.g., Potter v. United States, 887 F.3d 785, 788 (6th Cir. 6018). Accordingly, post-Johnson, a defendant can properly receive an ACCA-enhanced sentence based either on the statute's use-of-force or enumerated-offense clauses. United States v. Priddy, 808 F.3d 676, 683 (6th Cir. 2015); see also United States v. Taylor, 800 F.3d 701, 719 (6th Cir. 2015) (affirming ACCA sentence where prior convictions qualified under use-of-force and enumerated-offense clauses).

         In evaluating whether a conviction qualifies as a predicate offense under the ACCA's enumerated-offense clause, courts apply the “categorical approach, ” which requires the reviewing court to compare the elements of the statute of conviction with the “generic elements” of the offense. Mathis v. United States, 136 S.Ct. 2243, 2248 (2016); Descamps v. United States, 570 U.S. 254, 257 (2013). If the statute of conviction is broader than that criminalizing the generic offense, then it cannot qualify as a violent felony, regardless of the facts comprising the offense. See, e.g., Mathis, 136 S.Ct. at 2248-49.

         A burglary offense constitutes a predicate offense for purposes of the enumerated-offense clause of the ACCA when the offense's statutory definition substantially corresponds to the “generic” definition of burglary, which the Supreme Court has defined as “any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990).

         The Supreme Court has held that aggravated burglary under Tennessee law is generic burglary within the meaning of the ACCA, and thus, a conviction under the statute is a violent felony under the ACCA's enumerated-offense clause. United States v. Stitt, 139 S.Ct. 399, 406-07 (2018). Therefore, Norris' convictions for aggravated ...

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