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Tolliver v. United States

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

July 11, 2019




         Federal inmate Danetrius J. Tolliver has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, to which the United States has responded. Tolliver has not filed a reply, and the deadline to do so has passed. 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 Tolliver' § 2255 motion will be denied.


         After “drinking and using cocaine” one evening in 2016, Tolliver kicked open the door of an occupied house to “settle a score” with one of the residents [Doc. 19 pp. 1-2 in No. 1:16-CR-42]. The occupants called the police, and Tolliver fled, with the police in pursuit [Id.]. The chase ended when Tolliver crashed his truck [Id. at 2]. Inside Tolliver's truck, police found a stolen firearm [Id.]. Tolliver admitted that he had been carrying the firearm during the home invasion and subsequently pleaded guilty to possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) [Id. at 2; Doc. 20 in No. 1:16-CR-42].

         Based on his five prior Tennessee burglary convictions, Tolliver was deemed an armed career criminal under the Armed Career Criminal Act (“ACCA”) [Doc. 30 ¶¶ 30-31 in No. 1:16-CR-42]. Tolliver objected to the classification, arguing, in part, that Tennessee burglary is not a violent felony under the ACCA [Doc. 23 p. 3-4 in No. 1:16-CR-42]. This Court rejected that argument and sentenced Tolliver to 180 months' imprisonment [Doc. 46 p. 20-27 in No. 1:16-CR-42; Doc. 38 in No. 1:16-CR-42]. The Sixth Circuit affirmed Tolliver's conviction and sentence on appeal, and the Supreme Court denied certiorari [Docs. 48 and 52 in No. 1:16-CR-42].

         In July 2018, Tolliver filed the instant motion contesting his armed career criminal classification in light of Johnson v. United States, 135 S.Ct. 2551 (2015), Mathis v. United States, 136 S.Ct. 2243 (2016), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018) [Docs. 1 and 2]. The Court ordered the United States to respond to the motion, and it did so by filing its response on May 10, 2019 [Doc. 8]. Tolliver did not file a reply [See Doc. 5].


         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 a “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).

         Tolliver's claim that his prior Tennessee convictions for Class D burglary can no longer be counted as violent felonies after the Supreme Court's decisions in Johnson and Mathis fails. Both of these cases were decided before Tolliver's direct appeal was finalized, and the Sixth Circuit determined that his prior Tennessee burglary convictions qualified as violent felonies [Doc. 48 in No. 1:16-CR-42]. Moreover, 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). Finally, Dimaya offers Tolliver no relief, as it did not modify any portion of the ACCA, but rather, invalidated the residual clause in 18 U.S.C. ...

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