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Evans v. United States

United States District Court, M.D. Tennessee, Nashville Division

September 4, 2019

DOUGLAS EVANS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          ELI RICHARDSON UNITED STATES DISTRICT JUDGE.

         Pending 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. 59).[1] The Petition on Remand is ripe for decision.

         PROCEDURAL BACKGROUND

         In its 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 Remand.

         UNITED STATES v. JOHNSON

         The 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.

         A “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.”

         In 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 enumerated-offense clause.

         ANALYSIS

         Petitioner 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 ...


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