United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
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, and Norris' § 2255
motion will be denied.
BACKGROUND FACTS AND PROCEDURAL HISTORY
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and his State parole was revoked prior to federal sentencing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.
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].
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
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).
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. §
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).
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.
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).
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