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Patterson v. United States

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

November 1, 2019

JERRY PATTERSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING SUPPLEMENTAL CLAIM, DIRECTING CLERK TO TERMINATE MOTION, AND GRANTING EVIDENTIARY HEARING ON REMAINING CLAIM

          J. DANIEL BREEN, UNITED STATES DISTRICT JUDGE.

         Before 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.[1]

         BACKGROUND

         In 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.[2] (Id., D.E. 19.)

         The 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.

         On 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).[3] 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.[4]

         On 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).

         DISCUSSION

         A 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).

         A. Supplemental Claim.

         Under 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).

         In the Supplemental Claim, Petitioner submits that his burglary convictions are not ACCA predicate offenses because Tennessee's definition of “entry” allows for attempted burglary.[5] He avers that attempted burglary is not generic burglary, and thus cannot qualify as an ACCA predicate. Respondent maintains that U ...


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