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Long v. United States

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

August 7, 2019

JAMARCUS LONG, 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

         On August 6, 2010, Jamarcus Long entered a guilty plea to one count of possessing a firearm after conviction of a felony, in violation of 18 U.S.C. § 922(g). (No. 09-10050, Crim. ECF Nos. 53 & 54.) At his sentencing hearing on December 8, 2011, the Court determined, based on his criminal history, that Long 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 180-month term of imprisonment and a three-year period of supervised release. (No. 09-10050, Crim. ECF Nos. 85 & 86.) No. direct appeal was filed.

         In June 2016, Long sought permission from the Sixth Circuit Court of Appeals to file a second or successive motion under 28 U.S.C. § 2255 challenging his sentence under the decision in Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held a portion of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), unconstitutionally vague. The Court of Appeals denied leave as unnecessary because Long had not filed a previous § 2255 motion and transferred the proceeding to this Court. In re Long, No. 16-5782 (6th Cir. Dec. 8, 2016).

         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.

         Twenty-eight U.S.C. § 2255(f) contains a one-year limitations period:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
. . . .
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review;
. . . .

         Long filed his motion seeking leave to file a successive § 2255 in the Sixth Circuit on June 7, 2016, within one year after the decision in Johnson, so his § 2255 motion is deemed timely under § 2255(f)(3).

         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 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, the Supreme Court held the ACCA's residual clause is unconstitutionally vague and that increasing a ...


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