Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE
PAUL ANTHONY KNIGHT, )
)
Petitioner, )
) v. ) Nos. 3:06-CR-144-PLR-CCS
) 3:14-CV-281-PLR UNITED STATES OF AMERICA, )
)
Respondent. )
MEMORANDUM OPINION
Presently before the Court are a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and a supplemental § 2255 motion filed by petitioner Paul Anthony Knight which challenge his enhanced sentence as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), pursuant to Johnson v. United States , 135 S. Ct. 2551 (2015). In light of both and the recent en banc decision of the Sixth Circuit Court of Appeals in United States v. Stitt , 860 F.3d 854 (6 th Cir. 2017), it now is undisputed that petitioner no longer qualifies as an armed career criminal under the ACCA. Accordingly, petitioner’s § 2255 motion [Doc. 37] and supplemental § 2255 motion [Doc. 41], will be GRANTED.
I. BACKGROUND
*2 On October 17, 2006, a grand jury sitting in the Eastern District of Tennessee returned a four-count indictment against petitioner and a co-defendant. Petitioner was charged at counts one and three with transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312; at count two with concealing a stolen motor vehicle, in violation of 18 U.S.C. § 2313; and, at count four with possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 1]. On November 28, 2007, petitioner entered a plea of guilty to count four of the indictment [Doc. 26].
The presentence investigation report (“PSIR”) identified six previous convictions for a violent felony, committed on occasions different from one another, that qualified petitioner as an armed career criminal under the ACCA. All six of these convictions were for aggravated burglary under Tennessee law [PSIR¶¶ 34, 35, 36, 37, 38 and 39]. As an armed career criminal, petitioner was subject to a statutory mandatory minimum sentence of 15 years to a maximum of life and his advisory guideline range was 180 to 210 months [PSIR ¶¶ 67 and 68].
On April 14, 2010, petitioner was sentenced to a term of imprisonment of 195 months at count four of the indictment and a term of supervised release of five years [Doc. 34]. Petitioner did not file a direct appeal.
On June 19, 2014, petitioner, through court-appointed counsel, filed a § 2255 motion challenging his armed career criminal status based on the Supreme Court’s decision in Descamps v. United States , 133 S. Ct. 2276 (2013) [Doc. 37]. On June 13, 2016, petitioner, again through court-appointed counsel, filed a supplemental § 2255 motion raising an additional challenge to his armed career criminal status based on the Supreme Court’s invalidation of the ACCA residual clause in [Doc. 41].
The government’s motion to defer ruling on petitioner’s motion pending an en banc decision from the Sixth Circuit in United States v. Stitt , 646 Fed. App’x 454 (6 Cir. 2016), was granted by the Court on November 4, 2016 [Doc. 46]. On June 27, 2017, the Sixth Circuit issued its en banc decision holding that a conviction of aggravated burglary under Tennessee law does not qualify as a violent felony predicate offense under the ACCA. United States v. Stitt , 860 F.3d at 856.
On July 26, 2017, the parties filed a joint status report agreeing that petitioner no longer qualifies as an armed career criminal in light of Johnson and Stitt [Doc. 48].
II. ANALYSIS
1. TIMELINESS
Section 2255(f) places a one-year period of limitation on all petitions for collateral relief under § 2255 which runs from the latest of: (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).
Claims based on the Supreme Court’s opinion in satisfy the third sub-category – the assertion of a newly recognized right made retroactively applicable to cases on collateral review. Welch v. United States , 136 S. Ct. at 1268 ( constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review); In Re Watkins , 810 F.3d at *4 381-85. The one-year limitation period for filing a motion to vacate based on a right newly recognized by the Supreme Court runs from the date on which the Supreme Court initially recognized the right asserted, n ot from the date on which the right asserted was made retroactively applicable. Dodd v. United States , 545 U.S. 353, 357 (2005). Accordingly, Johnson triggered a renewed one-year period of limitation beginning on the date of that decision, June 26, 2015, and running until June 26, 2016.
In this case, petitioner filed a supplemental § 2255 motion raising a claim on June 13, 2016, which falls safely within the one-year window for requesting collateral relief under .
2. STANDARD OF REVIEW
To obtain relief under 28 U.S.C. § 2255, 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.” McPhearson v. United States , 675 F.3d 553, 558-59 (6 th Cir. 2012) (quoting Mallett v. United States , 334 F.3d 491, 496– 97 (6 th 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 (6 Cir. 1998).
3. PETITIONER’S JOHNSON CLAIM
A felon who possesses a firearm normally faces a maximum penalty of 10 years’ imprisonment, 18 U.S.C. § 924(a)(2), and 3 years’ supervised release, 18 U.S.C. §§ 3559(a)(3) and 3583(b)(2). However, if that felon possesses the firearm after having sustained three prior convictions “for a violent felony or serious drug offense, or both,” the ACCA requires a 15 year *5 minimum sentence, 18 U.S.C. § 924(e)(1), and increases the maximum supervised release term to 5 years, 18 U.S.C. §§ 3559(a)(1) and 3583(b)(1). The ACCA defines a “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 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).
In Johnson , the Supreme Court determined that the residual clause of the ACCA is unconstitutionally vague and concluded “that imposing an increased sentence under the residual clause … violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563. did not automatically invalidate all ACCA sentences, however, emphasizing that its holding “d[id] not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.” Id. ; see also United States v. Kemmerling , 612 F. App’x 373, 376 (6 Cir. 2015) (explicitly finding that Johnson did not affect the ACCA’s use-of-physical- force clause). Thus, under , an ACCA sentence only raises due process concerns—and thus is invalid—if it necessarily was based on predicate violent felonies that qualified as such only under the ACCA’s residual clause.
In this case, all of Petitioner’s predicate offenses were convictions for aggravated burglary in violation of Tenn. Code. Ann. § 39-14-403 [PSIR¶¶ 34, 35, 36, 37, 38 and 39]. Petitioner contends, inter alia , that aggravated burglary could qualify as a predicate offense only under the stricken residual clause of the ACCA. In response, the government initially cited then-binding Sixth Circuit precedent holding that a conviction for aggravated burglary under the Tennessee *6 statute qualifies as an ACCA predicate under the enumerated-offense clause. United States v. Nance , 481 F.3d 882, 888 (6 Cir. 2007).
However, in the en ban c Stitt decision, the Sixth Circuit overruled Nance and expressly held that aggravated burglary is not a violent felony for purposes of the ACCA. 860 F.3d at 860- 61. Applying a categorical approach, the Court determined that the Tennessee aggravated burglary statute “sweeps more broadly than generic burglary” and thus cannot qualify as a violent felony under the enumerated-offense clause. Id . at 861. Because the statute categorically is not a violent felony, and also is indivisible, the Sixth Circuit concluded that a conviction under the Tennessee aggravated burglary statute does not count as a violent felony under the ACCA. Id . at 862.
Because a conviction for aggravated burglary does not qualify as a violent felony under the first two clauses of § 924(e)(2)(B), [2] and invalidated the residual clause, petitioner’s aggravated burglary convictions under the Tennessee statute can no longer be used as predicate offenses under the ACCA. Furthermore, absent those convictions, petitioner no longer has the requisite three prior convictions of a violent felony or a serious drug offense necessary to subject him to the ACCA’s enhanced penalties.
Accordingly, the and Stitt decisions dictate that petitioner no longer can be designated an armed career criminal under § 924(e). As a result, the 195-month term of imprisonment and 5-year term of supervised release imposed by the Court exceed the maximum authorized sentence of not more than 10 years’ imprisonment and not more than 3 years’ supervised release for a non-ACCA offender convicted of a violation of § 922(g)(1). See 18 U.S.C. *7 § 924(a)(2) and 18 U.S.C. §§ 3559(a)(3) and 3583(b)(2). Under these circumstances, the Court finds a clear entitlement to § 2255 relief, as petitioner has been subjected to “a sentence imposed outside the statutory limits.” McPhearson , 675 F.3d at 559.
Where a § 2255 claim has merit, a district court “shall vacate and set the judgment aside” and, “as may appear appropriate,” shall either “discharge the prisoner or resentence him or grant a new trial or correct the sentence.” 28 U.S.C. § 2255(b); see also Ajan v. United States , 731 F.3d 629, 633 (6 Cir. 2013). In this case, the parties submit that the appropriate relief would be to correct petitioner’s sentence at count four to a sentence of time served and to reduce the supervised release term imposed at that count to 3 years. The Court agrees that a corrected sentence is the most appropriate form of relief in this case and will enter an order accordingly.
4. CONCLUSION
For the reasons set forth herein, the Court finds that petitioner is entitled to relief under § 2255 and will grant petitioner’s § 2255 motion [Doc. 37] and supplemental § 2255 motion [Doc. 41]. Since petitioner already has served approximately 117 months in prison [Doc. 48 p. 3], a total which exceeds the advisory guideline range which would have been applicable to him as a non- armed career criminal at the time of his original sentencing, [3] petitioner’s term of imprisonment will be corrected and reduced to a sentence of “time served” at count four of the indictment. While petitioner is entitled to discharge from custody, this order will not take effect until 10 days from its entry so as to give the Bureau of Prisons time to process Petitioner’s release. Further, the *8 Judgment imposed on April 14, 2008 [Doc. 34], will be amended to reflect a term of supervised release of 3 years at count four of the indictment. In all other respects, the Judgment imposed on April 14, 2008, shall remain in full force and effect.
ORDER ACCORDINGLY.
_________________________________________________________________________________________________________________________________________________________________________________________________________________ ______________________________________ ____________ UUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIITTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTEEEEEEEEEED STAAAAAAAATESS DDISSTTRICCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT JUDGE UNITED STATES DISTRICT JUDGE
[1] The Supreme Court has determined that , which invalidated the residual clause of the ACCA as unconstitutionally vague, announced a new “substantive rule that has retroactive effect in cases on collateral review.” Welch v. United States , 136 S. Ct. 1257, 1268 (2016); see also In Re Watkins , 810 F.3d 375, 381-85 (6 Cir. 2015).
[2] The parties acknowledge that aggravated burglary does not have as an element the use, attempted use or threatened use of force and therefore cannot qualify as a violent felony under the “use-of-physical-force” clause of the ACCA [Doc. 48 p. 2].
[3] Petitioner’s status as an armed career criminal under 18 U.S.C. § 924(e) increased his total offense level under the advisory United States Sentencing Guidelines from 23 to 30 [PSIR ¶¶ 26-29] but had no impact on his criminal history category, which would have been VI in any event [PSIR ¶ 48]. A total offense level of 23 with a criminal history category of VI would have resulted in a non-armed career criminal advisory guideline range of 92 to 115 months at the time of petitioner’s original sentencing.