United States District Court, E.D. Tennessee, Chattanooga
DANETRIUS J. TOLLIVER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
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, and Tolliver' § 2255 motion
will be denied.
BACKGROUND FACTS AND PROCEDURAL HISTORY
“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].
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
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].
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 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.
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).
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