United States District Court, M.D. Tennessee, Nashville Division
RICHARDSON UNITED STATES DISTRICT JUDGE.
before the Court is the Notice of Claims (Doc. No. 56) filed
by Petitioner through his former counsel, as supplemented by
Petitioner's filings (discussed below) at Doc Nos. 67-1,
67-2, 69, 69-1 (collectively, the “Petition on
Remand”) filed by his current counsel. Subsequent to
these filings, and earlier this year, this case was
transferred to the undersigned district judge. As the
undersigned perceives from the record, this case is on remand
from the Sixth Circuit, which effectively reversed the
dismissal of Petitioner's original motion under 28 U.S.C.
§ 2255 to vacate, set aside or correct the sentence
imposed in Middle District of Tennessee Case No.
3:08-cr-00209. The undersign gathers that the Petition on
Remand essentially serves as Petitioner's amended,
post-appeal motion under Section 2255(a). The Government
responded in opposition to the Notice of Claims (Doc. No.
The Petition on Remand is ripe for decision.
order remanding this case, the Sixth Circuit cogently set
forth the procedural history of, and issue for consideration
in, this case:
In 2009, Evans pleaded guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)
and 924(e)(1). The district court sentenced Evans as an armed
career criminal to 180 months of imprisonment. Evans did not
appeal. In January 2015, Evans filed a § 2255 motion to
vacate, raising four grounds for relief: (1) trial counsel
performed ineffectively by failing to object to the
application of a sentencing enhancement under the Armed
Career Criminal Act (“ACCA”); (2) the district
court improperly applied the ACCA sentencing enhancement; (3)
trial counsel performed ineffectively by failing to
investigate the indictment and charges against him; and (4)
the indictment was insufficient.
A magistrate judge recommended denying Evans's §
2255 motion because it was barred by the one-year statute of
limitations, and Evans failed to allege or show that he was
entitled to equitable tolling. On May 11, 2015, over
Evans's objections, the district court adopted the
magistrate judge's report and recommendation, dismissed
Evans's § 2255 motion, and declined to issue a
certificate of appealability. Evans did not appeal. On July
20, 2015, Evans filed an “addendum” asking the
district court to consider the impact of Johnson v.
United States, 135 S.Ct. 2551 (2015), on his case. The
district court construed Evans's filing as a motion for
relief from judgment filed under Federal Rule of Civil
Procedure 60(b). It denied the motion, finding that
Johnson was not retroactively applicable to cases on
collateral review. The district court subsequently granted
Evans a certificate of appealability on the question of
whether Johnson is retroactively applicable to cases
on collateral review.
The government has now moved to remand the case so that the
district court can consider Evans's Johnson
claim in the first instance. This court has held that
Johnson does, in fact, apply retroactively to cases
on collateral review. See In re Watkins, 810 F.3d
375, 383-84 (6th Cir. 2015). The district court's order
denying Evans's Rule 60(b) motion was based solely upon
its finding to the contrary.
(Doc. No. 51 at 203). Thus, the Sixth Circuit remanded this
case “for consideration of those of Evans's claims
that are based on Johnson.” (Id.).
Petitioner thereafter filed in this Court his Petition on
STATES v. JOHNSON
Sixth Circuit did not perceive the need to discuss
Johnson or its relevance to this case, and so the
Court will do so now. Johnson relates to the
enhancement of sentences for Section 922(g) convictions under
the Armed Career Criminal Act (18 U.S.C. § 924(e),
“ACCA”). Under the ACCA, a defendant convicted of
a violation of 18 U.S.C. § 922(g) is subject to a
mandatory minimum 15-year sentence if, prior to the
violation, he or she had at least three previous convictions
for a “violent felony” (or “serious drug
offense, ” though none are implicated in this case)
committed on occasions different from one another.
“violent felony” for purposes of the ACCA is an
offense that: (1) has as an element the use, attempted use,
or threatened use of physical force against the person of
another; or (2) is burglary, arson, extortion, involves use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
See § 922(e)(2)(B). The first provision
-i.e., provision (1) - is referred to as the
“force [or use of physical force] clause” or
“elements” clause. See Dunlap v. United
States, -- F.3d --, No. 18-5233, 2019 WL 3798534, at *3
(6th Cir. Aug. 13, 2019). The first part of the second
provision-i.e., provision (2)-is referred to as the
“enumerated-offense clause, ” while the second
(i.e., post-comma) part of the second provision is
referred to as the “residual clause.”
Johnson, the Supreme Court held that the residual
clause of the ACCA is unconstitutionally vague, striking down
this part of the statute. The upshot of Johnson is
that now a prior felony can constitute a “violent
felony” only if it satisfies the force clause or the
argues that Johnson invalidates the ACCA-predicate
status of all three of his prior convictions that were used
by the sentencing court as the predicates to impose upon him
the ACCA's mandatory minimum sentence of 15 years. In
particular, he claims that post-Johnson, none of his
convictions (which were all imposed by Tennessee state courts
under Tennessee law) should be counted as ACCA predicates.
(Doc. No. 56 at 1). He asserts that none of those
convictions-for aggravated assault, robbery without a deadly
weapon, and armed robbery- qualifies under either the force
clause or enumerated-offense clause. If he is correct with
respect to ...