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Bailey v. United States

United States District Court, W.D. Tennessee, Eastern Division

July 31, 2019

JOHN ANTHONY BAILEY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          JAMES D. TODD, UNITED STATES DISTRICT JUDGE

         Before the Court is a motion pursuant to 28 U.S.C. § 2255 filed by the Movant, John Anthony Bailey. For the reasons stated below, the Court DENIES the § 2255 motion.

         On June 16, 2004, Bailey was convicted by a jury of possessing a firearm after conviction of a felony, in violation of 18 U.S.C. § 922(g). (No. 04-10007, Crim. ECF Nos. 27 & 32.)[1] At the sentencing hearing on December 30, 2004, the Court determined, based on his criminal history, that Bailey qualified for an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See also U.S.S.G. § 4B1.4. He was sentenced to a 262-month term of imprisonment and a three-year period of supervised release. (No. 04-10007, Crim. ECF Nos. 65 & 68.) The Sixth Circuit affirmed the conviction but vacated and remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v. Bailey, No. 05-5121 (6th Cir. Sept. 13, 2006).

         At the resentencing hearing, the Court sentenced Bailey to a 204-month term of imprisonment, again followed by a three-year period of supervised release. (No. 04-10007, Crim. ECF No. 104; id. Resent'g Tr., Crim. ECF No. 109.) The Sixth Circuit affirmed. United States v. Bailey, 264 Fed.Appx. 480 (6th Cir.), cert. denied, 554 U.S. 909 (2008). Bailey then filed a timely motion pursuant to 28 U.S.C. § 2255, which was denied as to all issues. Bailey v. United States, No. 09-1140-JDT-egb (W.D. Tenn. Sept. 13, 2012). The Sixth Circuit denied a certificate of appealability. Bailey v. United States, No. 13-6623 (6th Cir. Aug. 8, 2014).

         Following the decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Bailey sought and was granted leave by the Sixth Circuit to file this successive § 2255 motion challenging his ACCA-enhanced sentence. (ECF Nos. 1 & 2.)

         Pursuant to 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         “A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).

         After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Rule 4(b), Rules Governing § 2255 Proceedings (§ 2255 Rules). “If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.” Id.

         The ACCA requires a fifteen-year sentence for a felon who is convicted of unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g) and who has three prior convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The ACCA defines “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 “elements clause”), (2) “is burglary, arson, or extortion, involves use of explosives” (the “enumerated offenses clause”), or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the “residual clause”). Id., § 924(e)(2)(B)(i)-(ii). In Johnson v. United States, the Supreme Court held the ACCA's residual clause is unconstitutionally vague and that increasing a defendant's sentence under the clause is, therefore, a denial of due process. 135 S.Ct. at 2563. The Supreme Court later held the decision in Johnson was retroactive and thus applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257 (2016).

         At Bailey's resentencing hearing, the Court determined he qualified for an ACCA-enhanced sentenced based on four prior felony convictions. The first, a Tennessee conviction for reckless endangerment, was counted only under the residual clause of the ACCA. (No. 04-10007, Resent'g Tr., Crim. ECF No. 109 at PageID 159-60.)[2] After Johnson, that conviction no longer qualifies as an ACCA predicate. However, the Court also found that Bailey had three prior Tennessee convictions for serious drug offenses.

         Bailey argues that he has, at most, two prior drug convictions under the ACCA because at least two and possibly all three of the offenses were so closely related in nature and in time that they cannot be considered offenses “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Bailey's trial counsel argued this issue at resentencing, and it was rejected by the Court.

         The Presentence Investigation Report (PSR) prepared by the Probation Office shows that in Madison County case number 96-73, Bailey entered a guilty plea to the charge of having sold more than .5 gram of cocaine on November 24, 1995. (PSR ¶ 29.) In case number 96-72, Bailey also pleaded guilty to having sold more than .5 gram of cocaine on November 28, 1995. (Id. ¶ 28.) In the third Madison County drug case, number 96-168, Bailey was charged, inter alia, with possession of over .5 gram of cocaine on November 28 1995, with intent to sell. He pled guilty in that case as well. (Id. ¶ 27.)

         According to Bailey's testimony at the resentencing hearing, the cocaine sales he made on November 24 and November 28, 1995, were to an individual who, it turned out, was working with law enforcement as a confidential informant. (No. 04-10007, Resent'g Tr., Crim. ECF No. 109 at PageID 143-44.) Based on the two sales to the informant, officers obtained a search warrant for Bailey's motel room. (Id. at PageID 144.) When the search warrant was executed around midnight on November 28th, (id.), the officers found 12.1 grams of crack cocaine in Bailey's room. (PSR ¶ 27.) Bailey testified the search warrant was executed “a couple of hours” after the second cocaine sale to the confidential informant. (Resent'g Tr., Crim. ECF No. ...


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