United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING SUPPLEMENTAL CLAIM, DIRECTING CLERK TO
TERMINATE MOTION, AND GRANTING EVIDENTIARY HEARING ON
DANIEL BREEN, UNITED STATES DISTRICT JUDGE.
the Court is Petitioner, Jerry Patterson's, fourth
supplemental claim (the “Supplemental Claim”).
(Docket Entry (“D.E.”) 34.) Therein, he asserts,
through appointed counsel, that he no longer qualifies for an
enhanced sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1). Also before
the Court is the inmate's pro se claim that his attorney
rendered ineffective assistance (Claim 2). (D.E. 1.) For the
following reasons, the Supplemental Claim is DENIED and an
evidentiary hearing will be held to resolve disputed facts
relating to Claim 2.
January 2014, a federal grand jury returned an indictment
charging Patterson with multiple counts of being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (Counts 1-3, 7-9) and
possession of a stolen firearm in violation of 18 U.S.C.
§§ 922(j) and 924(e) (Counts 4-6, 10-12).
(United States v. Patterson, 1:14-cr-10004-JDB (W.D.
Tenn.), D.E. 2.) The Defendant subsequently entered a plea of
guilty to all twelve counts without the benefit of a written
plea agreement. (Id., D.E. 19.)
Defendant was determined to be subject to a minimum
fifteen-year sentence under the ACCA, based on his prior
Tennessee convictions for burglary of a building (three
separate offenses), aggravated burglary (two separate
offenses), attempt to commit burglary, and attempt to commit
second-degree murder. (Presentence Report (the
“PSR”) at 11-19.) The Court conducted a hearing
and sentenced Patterson to 180 months' incarceration and
three years of supervised release. (United States v.
Patterson, 1:14-cr-10004-JDB (W.D. Tenn.), D.E. 26.) No.
direct appeal was taken.
December 9, 2015, Patterson filed a motion to vacate, set
aside, or correct his sentence (the “Petition”),
pursuant to 28 U.S.C. § 2255. (D.E. 1.) He asserted in
Claim 1 that he was no longer an armed career criminal
because his attempted burglary conviction did not qualify as
an ACCA predicate after Johnson v. United States,
135 S.Ct. 2551 (2015) and because, for other reasons, his
burglary and aggravated burglary convictions were not
qualifying offenses. For the latter proposition, he relied,
in part, on the Sixth Circuit's decision in United
States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc),
rev'd, 139 S.Ct. 399 (2018), and the United
States Supreme Court's ruling in Mathis v. United
States, 136 S.Ct. 2243 (2016). Patterson further posited
that Tennessee's crime of burglary of a building,
Tennessee Code Annotated § 39-14-402(a)(1), is not a
qualifying offense because it “does not require . . .
unlawful entry.” (D.E. 14 at PageID 74.) In Claim 2, he
asserted that his attorney was ineffective in failing to file
an appeal after he requested that one be filed.
January 4, 2018, the Court stayed and administratively closed
the case pending the Supreme Court's ruling in
Stitt. (D.E. 18.) After the Supreme Court decided
the case on December 10, 2018, the undersigned reopened this
matter, lifted the stay, and denied Claim 1. (D.E. 22.) In
the same order, entered February 6, 2019, the Court directed
Respondent, the United States of America, to respond to Claim
2. (Id.) The Government filed its response on April
28, 2019 (D.E. 33), and Petitioner thereafter filed the
Supplemental Claim (D.E. 34).
prisoner seeking to vacate his sentence under § 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.)
A § 2255 petitioner is entitled to an evidentiary
hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief.” 28 U.S.C. § 2255(b).
the ACCA, a person who is convicted of being a felon in
possession of a firearm and who “has three previous
convictions . . . for a violent felony or a serious drug
offense . . . committed on occasions different from one
another . . . shall be . . . imprisoned not less than fifteen
years.” 18 U.S.C. § 924(e)(1). The statute defines
“violent felony” as
any crime punishable by imprisonment for a term exceeding one
year . . . that . . . (i) has as an element the use,
attempted use, or threatened use of physical force against
the person of another; or (ii) is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another[.]
18 U.S.C. § 924(e)(2)(B).
Supplemental Claim, Petitioner submits that his burglary
convictions are not ACCA predicate offenses because
Tennessee's definition of “entry” allows for
attempted burglary. He avers that attempted burglary is not
generic burglary, and thus cannot qualify as an ACCA
predicate. Respondent maintains that U ...