Opinion
No. 3:05-CR-70-RLJ-CCS-1 No. 3:16-CV-421-RLJ
03-06-2017
JOHN L. WESTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION
Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 64]. The petition challenges Petitioner's career offender enhancement based on Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.]. The United States responded in opposition to collateral relief on February 17, 2017 [Doc. 67]. After review, no reply is required. For the reasons below, Petitioner's § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.
I. BACKGROUND
In 2006, Petitioner pled guilty to possessing cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), using, carrying, and brandishing a firearm during and relation to that drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), and possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) [Docs. 28, 29, 45]. Based on two prior Tennessee convictions—a 1992 robbery conviction and a 1992 aggravated assault conviction—and one prior federal conviction for interstate travel or transportation in aid of racketeering enterprises [Presentence Investigation Report (PSR) ¶¶ 41, 42, 45], the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with a corresponding Guideline range of 262 to 327 months' imprisonment [Id. ¶¶ 31, 75] . In accordance with that designation, this Court sentenced Petitioner to an aggregate 200-month term of incarceration on May 24, 2007 [Doc. 45]. No direct appeal was taken.
On June 1, 2009, this Court granted the United States' motion for downward departure pursuant to Rule 35 and reduced Petitioner's sentence to an aggregate term of 164 months' imprisonment [Doc. 50]. Seven years later—on June 30, 3016, Petitioner filed the instant petition based on the Johnson decision [Doc. 64 (challenging his career offender enhancement)].
II. TIMELINESS OF PETITIONER'S CLAIMS
Section 2255(f) places a one-year statute of limitations on all petitions for collateral relief under § 2255 running from either: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (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; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). Supreme Court precedent makes clear that Johnson's invalidation of the ACCA residual clause amounted to a new rule made retroactively applicable on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1265 (U.S. 2016) ("Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review."); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers § 2255(h)(2)'s requirement for certification of a second or successive petition). It is yet to be seen whether the same is true of the "new rule" that results from application of Johnson's reasoning in the Guideline context. See Pawlak v. United States, 822 F.3d 902, 911 (6th Cir. 2016) (holding that Johnson's vagueness analysis applies equally to the Guidelines and, as a result, that the parallel residual provision contained in Section 4B1.2 was void for vagueness); but see In re Embry, No. 16-5447, 2016 WL 4056056, at *1 (6th Cir. July 29, 2016) (recognizing that "it is not clear whether to treat Pawlak as a new rule that the Supreme Court has not yet made retroactive [to cases on collateral review] or as a rule dictated by Johnson that the Supreme Court has made retroactive"). The Court finds that it need not resolve the issue here, however, because the Johnson decision has no impact on Petitioner's case.
III. STANDARD OF REVIEW
The relief authorized by 28 U.S.C. § 2255 "does not encompass all claimed errors in conviction and sentencing." United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, a petitioner must demonstrate "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He "must clear a significantly higher hurdle than would exist on direct appeal" and establish a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
Petitioner bears the burden of demonstrating an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings, Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993), and he likewise bears the burden of articulating sufficient facts to state a viable claim for relief under 28 U.S.C. § 2255. A § 2255 motion may be dismissed if it only makes vague conclusory statements without substantiating allegations of specific facts and thereby fails to state a claim cognizable under § 2255. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972).
IV. ANALYSIS
Petitioner articulates a single ground for relief, arguing that the Johnson decision removed an unspecified number of his prior convictions from Section 4B1.2's definition of "crime of violence" and that he no longer has sufficient predicates for enhancement [Doc. 64].
The ACCA mandates a fifteen-year sentence for any felon who unlawfully possesses a firearm after having sustained three prior convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 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 (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the "use-of-physical-force clause"); (2) "is burglary, arson, or extortion, involves the use of explosives" (the "enumerated-offense clause"); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "residual clause"). 18 U.S.C. § 924(e)(2)(B). It was this third clause—the residual clause—that the Supreme Court deemed unconstitutional in Johnson. 135 S. Ct. at 2563. The Court went on to make clear, however, that its decision did "not call into question . . . the remainder of the [ACCA's] definition of violent felony," i.e., the use-of-physical-force and enumerated-offense clauses. Id. Nor did Johnson disturb the use of prior serious drug offenses.
Section 4B1.1 classifies a defendant as a career offender if (1) he or she was at least eighteen years old at the time the defendant committed the instant offense; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) he or she has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S. Sentencing Manual § 4B1.1(a). Only Petitioner's satisfaction of the third prong—possession of two qualifying predicate convictions—is disputed [Doc. 45].
"Controlled substance offense" is defined as any offense "punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of controlled substance . . . with intent to manufacture, import, export, distribute, or dispense." U.S. Sentencing Manual § 4B1.2(b). "Crime of violence" is defined in an almost identical manner as "violent felony" under the ACCA. See U.S. Sentencing Manual §4B1.2(a) (adopting identical use-of-force and residual clauses as well as a nearly identical enumerated-offense clause).
The validity of Petitioner's sentence thus depends on whether two or more of his prior convictions qualify as "crimes of violence" under one of the unaffected provisions of Section 4B1.2(a) or as "controlled substance offenses" under Section 4B1.2(b). See e.g., United States v. Ozier, 796 F.3d 597, 604 (6th Cir. 2015) (denying petition where conviction qualified as a predicate offense independent of the residual clause), overruled on other grounds by Mathis v. United States, 136 S. Ct. 2243, 2251 n. 1 (2016). To determine whether a particular offense qualifies as a crime of violence under any of the prongs of the above definition, courts must first identify the precise crime of conviction. Descamps, 133 S. Ct. at 2285. They do so by employing a "categorical approach," under which they look "only to the statutory definitions—elements—of a defendant's prior offense, and not to the particular facts underlying [each individual] conviction[]." Id. at 2283. When the conviction involves violation of a "divisible" statute—one which comprises multiple, alternative versions of the crime—courts resort to the "modified categorical approach" under which they "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." Id. at 2281.
As an initial matter, the Court notes that one of the three convictions designated as predicate offenses supporting career offender enhancement was a Tennessee conviction for simple robbery. Binding Sixth Circuit precedent dictates that the conviction remains a crime of violence under the Guidelines use-of-physical force clause. See United States v. Taylor, 800 F.3d 701, 719 (6th Cir. 2015) ("[T]he Supreme Court's holding in Johnson leaves unaffected the Court's determination that simple robbery in Tennessee is a predicate offense under the 'use-of-physical-force' clause."); United States v. Bailey, No. 14-6524, 2015 WL 4257103, at *4 (6th Cir. July 15, 2015) ("Tennessee convictions for aggravated robbery and robbery are categorically violent felonies under the ACCA's use-of-physical-force clause."); United States v. Mitchell, 743 F.3d 1054, 1058-60 (6th Cir. 2014) (holding Tennessee robbery is categorically a violent felony under the use-of-physical-force clause). The Johnson decision did not impact that categorization. See United States v. Kemmerling, 612 F. App'x 373, 375-76 (6th Cir. 2015) (reiterating that the Johnson decision did not affect the use-of-physical-force clause).
Further, Petitioner has failed to satisfy his burden of proof by demonstrating that this Court erred when relied on his aggravated assault conviction as a second predicate offense. At the time Petitioner committed the offense, Tennessee defined aggravated assault as follows:
(a) A person commits aggravated assault who:
(1) Commits an assault as defined in § 39-13-101 and;
(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon; or
Tenn. Code Ann. § 39-13-102 (1992).(2) Being the parent or custodian of a child or the custodian of an adult, intentionally or knowingly fails or refuses to protect such child or adult from an aggravated assault as defined in subdivision (a).
(3) After after having been enjoined or restrained by an order, diversion or probation agreement of a court of competent jurisdiction from in any way causing or attempting to cause bodily injury or in any way committing or attempting to commit an assault against an individual or individuals, attempts to cause or causes bodily injury or commits or attempts to commit an assault against such individual or individuals.
The statute is divisible because it lists multiple variants of the offense with distinct penalties. See, e.g., United States v. Cooper, 739 F.3d 873, 879 (6th Cir. 2014) (recognizing that Tenn. Code Ann. § 39-13-102 "can be offended in a number of ways"). The undisputed PSR indicates that Petitioner was convicted of intentionally assaulting another person with use of a deadly weapon, in violation of Tennessee Code Annotated § 39-13-102(a)(1)(b) [PSR ¶ 42 (explaining that Petitioner was in possession of a knife and intentionally caused a police officer to reasonably fear imminent bodily injury)]. Because that variant categorically involves an intentional or knowing threat of violent force, see Tenn. Code Ann. § 39-11-106(5) (1992) (defining "deadly weapon" as either "a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or . . . [a]nything that in the manner of its use or intended use is capable of causing death or serious bodily injury"); see also United States v. Arender, 560 F. App'x 648, 649 (8th Cir. 2014) (finding that a Tennessee aggravated assault conviction based on display of a deadly weapon had "as an element the threatened use of physical force[,] . . . capable of causing pain or injury"), Petitioner's motion will be DENIED.
Petitioner does not contest the accuracy of the information contained in his PSR, but only the propriety of the Court's decision to use the predicate offenses listed therein as grounds for career offender enhancement. Regardless, he waived the ability to object to the PSR's factual summaries on collateral review when he failed to do the same at the original sentencing hearing. See Levy, 250 F.3d at 1018 (citing United States v. Ward, 190 F.3d 483, 492 (6th Cir. 1999)).
Because at least two of Petitioner's prior convictions remain crimes of violence after the Johnson and Pawlak decisions, this Court finds that it need not determine whether Petitioner's conviction for interstate travel or transportation in aid of racketeering enterprise remain a crime of violence as well. --------
IV. CONCLUSION
For the reasons discussed above, the § 2255 motion [Doc. 64] will be DENIED and DISMISSED WITH PREJUDICE. The Court will CERTIFY any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, this Court will DENY Petitioner leave to proceed in forma pauperis on appeal. See Fed. R. App. P. 24. Petitioner having failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
AN APPROPRIATE ORDER SHALL ENTER.
ENTER:
s/ Leon Jordan
United States District Judge