Shropshire v. United States

259 F.Supp.3d 798

David SHROPSHIRE, Petitioner,

v.UNITED STATES of America, Respondent.

Case Nos. 1:02–cr–72

1:16–cv–476

United States District Court, E.D. Tennessee, Southern Division, at Chattanooga.

Signed April 10, 2017

David Shropshire, Yazoo City, MS, pro se.

MEMORANDUM OPINION

TRAVIS R. McDONOUGH, UNITED STATES DISTRICT JUDGE

Before the Court is Petitioner's successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 202.)¹ Petitioner bases his request for relief on Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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 (Doc. 204); Petitioner replied in turn (Doc. 207). Recently, Petitioner field an "expedited motion" for a hearing on the merits (Doc. 208); the United States again responded in opposition (Doc. 209). For the reasons that follow, the § 2255 petition will be GRANTED . The request for an expedited hearing will be DENIED as moot .

I. BACKGROUND

In 2002, Petitioner pled guilty to possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g), and committing a Hobbs Act robbery, in violation of 18 U.S.C. § 1951. (Doc. 149.) Based on four prior Tennessee felony convictions—a 1974 first-degree murder conviction, a 2000 aggravated assault conviction, a 2000 reckless driving conviction, and a 2000 attempted carjacking conviction—the United States Probation Office deemed Petitioner to be an armed career criminal subject to the ACCA's fifteen-year term of imprisonment. (Presentence Investigation Report (PSR) ¶¶ 36, 41, 48, 50–51, 74.) In accordance with that designation, this Court sentenced Petitioner to 211 months' imprisonment. (Docs. 96, 106.) Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence on May 19, 2008. (Doc. 149.) He did not seek a writ of certiorari.

On October 31, 2008, Petitioner filed a § 2255 motion seeking to vacate, set aside, or correct his sentence. (Docs. 151, 152.) This Court denied that petition on the merits in a Memorandum Opinion and Judgment Order entered on September 13, 2011. (Docs. 175, 176.) The Supreme Court issued the Johnson decision on June 26, 2015. The Sixth Circuit authorized this Court to consider the instant successive petition on November 28, 2016. (Docs. 198, 202.)

II. 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, 99 S.Ct. 2235, 60 L.Ed.2d 805 (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).

III. ANALYSIS

The petition contains a single ground for collateral relief, arguing that the Johnson decision removed aggravated assault, reckless driving, and attempted carjacking from the definition of "violent felony" in § 924(e) and that, without those convictions, Petitioner no longer qualifies for ACCA enhancement. (Doc. 202 (challenging the status of Petitioner's attempted carjacking and reckless driving offenses); Doc. 203 (challenging the status of his aggravated assault offense).)

A. Propriety of ACCA Designation After the Johnson Decision

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) (emphasis added). The provision defines "serious drug offense" as any "offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). The Act goes on to define "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). Only the third portion of the above definition—the residual clause—was held to be unconstitutionally vague by the Supreme Court in the Johnson decision. 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—the use-of-physical-force and enumerated-offense clauses. Id. ; United States v. Priddy , 808 F.3d 676, 682–83 (6th Cir. 2015). Nor does Johnson disrupt the use of prior serious drug offenses as an independent form of ACCA predicate conviction. See, e.g. , United States v. Smith , No. 10-CR-20058, 2015 WL 5729114, at *9–13 (E.D. Mich. Sept. 30, 2015) (noting that Johnson does not affect a defendant's categorization as an armed career criminal based on his or her prior serious drug offenses).

Petitioner does not dispute that his 1974 conviction for first-degree murder remains a violent felony under the use-of-physical-force clause, and the United States agrees that his 2000 conviction for reckless driving only qualified as a predicate offense under the now-defunct residual provision. (Doc. 204, at 3 (stipulating that "[P]etitioner's reckless driving conviction, which was initially classified as a violent felony, no longer constitutes a violent felony post- Johnson ).) As such, the continued validity of Petitioner's categorization as an armed career criminal depends on whether his 2000 convictions for attempted carjacking and aggravated assault remain "violent felonies" under one of the unaffected provisions of § 924(e)(2)(B). See, e.g. , United States v. Ozier , 796 F.3d 597, 604 (6th Cir. 2015) (denying petition where convictions qualified as a predicates independent of the residual clause), overruled on other grounds by Mathis v. United States , 136 S.Ct. at 2246, 2251 n.1 (2016). Because the Court finds that his attempted carjacking offense does not, it declines to address the status of Petitioner's aggravated assault offense.

At the time Petitioner attempted the carjacking, Tennessee defined the offense as follows:

(a) "Carjacking" is the intentional or knowing taking of a motor vehicle from the possession of another by use of:

(1) A deadly weapon; or

(2) Force or intimidation.

Tenn. Code Ann. § 39–13–404 (2000). Because carjacking is not listed as an enumerated offense in § 924(e)(2)(B)(ii), its status as an ACCA predicate depends on the use-of-physical-force clause.

To determine whether Petitioner's conviction for attempted carjacking remains a violent felony under the use-of-physical-force clause, the Court needs to identify the precise crime of conviction. Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013). To do so, it must employ a "categorical approach," under which it looks "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 (internal quotations omitted). If the statute categorically aligns with the generic version of the offense, the inquiry is over. If, however, the statute criminalizes conduct in excess of that covered by the enumerated-offense clause, it becomes necessary to determine whether the statute is divisible or indivisible. A divisible statute is one that comprises multiple crimes, or alternative sets of elements. Id. at 2281. An indivisible statute is one that contains a single crime, or a lone set of indivisible elements. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). When faced with a divisible statute, the Court resorts to the "modified categorical approach," i.e. , consults "a limited class of documents, such as indictments and jury instructions, to determine which alternative [set of elements] formed the basis of the defendant's prior conviction." Id. at 2281. "[T]he job ... of the modified approach [is only] to identify, from among several alternatives, the crime of conviction so that the court can" determine whether that variant of the offense qualifies as a violent felony under the ACCA's definition of violent felony. Id. at 2285. Because the categorical and modified approaches are concerned with elements and not "facts underlying [any particular] conviction," id. at 2285, the Court is prohibited from using either approach to distinguish between alternative means for satisfying a single indivisible element. Mathis , 136 S.Ct. at 2253–54. As such, it is important to distinguish between divisible provisions to which the Court can apply the modified approach and indivisible provisions to which it cannot. Convictions under an overly broad indivisible provision are incapable of serving as a predicates.²

For reasons that the Court will explain in more detail below, it finds that Tennessee Code Annotated § 39–13–404 (2000) is overly broad because some conduct covered by the criminal statute does not necessarily require the use of violent physical force. As such, this...