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Hill v. United States

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

August 16, 2019




         Before the Court is a motion pursuant to 28 U.S.C. § 2255 filed by the Movant, Paul Garnet Hill, through counsel. For the reasons stated below, the Court DENIES the § 2255 motion.[1]

         On June 10, 2004, Hill 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. 04-10026, Crim. ECF Nos. 17 & 18.) At a sentencing hearing on September 24, 2004, the Court determined that Hill 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 188-month term of imprisonment and a three-year term of supervised release. (No. 04-10026, Crim. ECF Nos. 26 & 28.) On direct appeal, the conviction was affirmed, but the case was remanded for resentencing under United States v. Booker, 543 U.S. 220 (2005). United States v. Hill, 440 F.3d 292 (6th Cir. 2006). At a resentencing hearing on July 17, 2006, the Court again imposed a 188-month term of imprisonment. (No. 04-10026, Crim. ECF Nos. 45 & 46.) Hill did not file an appeal. He filed a motion pursuant to 28 U.S.C. § 2255 on June 9, 2014, which the Court denied as untimely. Hill v. United States, No. 04-1134-JDT-egb, 2014 WL 5460626 (W.D. Tenn. Oct. 27, 2014), cert. of appealability den., No. 14-6390 (6th Cir. May 28, 2015).

         The Sixth Circuit subsequently granted leave for Hill to file the present § 2255 motion, in which he challenges his sentence under the decision in Johnson v. United States, 135 S.Ct. 2551 (2015). (ECF No. 1.)

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;

         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). Hill's § 2255 motion based on Johnson is timely under 28 U.S.C. § 2255(f)(3).

         According to the Presentence Investigation Report (PSR) prepared by the Probation Office in this case, one of the three prior convictions used to determine Hill was an armed career criminal is a 1999 Tennessee conviction for aggravated burglary under Tennessee Code Annotated § 39-14-403. (See PSR ¶¶ 23, 38.) The other two convictions are 1993 Tennessee convictions for burglary under § 39-14-402. (See Id. ¶¶ 23, 31.) In this § 2255 proceeding, Hill contends only that the aggravated burglary conviction no longer qualifies as an ACCA predicate under Johnson. He does not challenge the use of the 1993 burglary convictions under the ACCA.[2]

         In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court held that a prior burglary conviction counts under the ACCA only if it is a “generic” burglary, meaning that it “contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Id. at 598. The Court further held that in determining the applicability of an ACCA enhancement, courts must use the ‚Äúcategorical ...

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