United States District Court, W.D. Tennessee, Eastern Division
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
D. TODD, UNITED STATES DISTRICT JUDGE
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.
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 &
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).
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).
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.)
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
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).
§ 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.”
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
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.) 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.
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.
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.)
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. ...