Ursery v. United States

1

TYQUEZ URSERY, v. UNITED STATES OF AMERICA

No. 3:22-cv-00776

United States District Court, M.D. Tennessee, Nashville Division

November 1, 2024

MEMORANDUM

WILLIAM L. CAMPBELL, JR. CHIEF UNITED STATES DISTRICT JUDGE.

Pending before the Court are Petitioner Tyquez Ursery's Motion and Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (Doc. Nos. 1, 3). Although Petitioner filed the motion and amended motion pro se, he did so with the assistance of his former defense counsel. Recognizing that some of Petitioner's claims would present a conflict of interest for his former attorney Petitioner requested appointment of counsel, which the Court granted. (See Doc. No. 6). The Government filed a response to the motion and amended motion. (Doc. No. 11). Petitioner, through appointed counsel, filed a reply (Doc No. 18), and following the Supreme Court's decision in Erlinger v. United States, 602 U.S. 821 (2024) filed a supplemental brief (Doc. No. 20), to which the United States responded (Doc. No. 24).

For the reasons set forth herein, Petitioner's Motion is DENIED.

I. BACKGROUND

On April 8, 2019, Petitioner pleaded guilty to the sole count in the indictment - felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924.^[1] (See Trans. of Plea Hearing, CR Doc. No. 73; Indictment, CR Doc. No. 1). Prior to sentencing, the United States Probation Office authored a Presentence Investigation Report (“PSR”), which determined that Petitioner qualified for sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”). (PSR, CR Doc. No. 71 at ¶ 21). The ACCA requires a mandatory minimum sentence for any person who has been convicted of being a felon in possession of a firearm and who has three previous convictions for violent felonies or serious drug offenses that were “committed on occasions different from one another.” 18 U.S.C. § 924(e). The PSR identified the following predicate convictions:

a) On October 29, 2013, Ursery was sentenced in Davidson County Criminal Court, Nashville Tennessee, for a conviction for Facilitation of Attempted Especially Aggravated Robbery (2012-A-156).

b) October 29, 2013, Ursery was sentenced in Davidson County Criminal Court, Nashville, Tennessee, for a conviction for Facilitation of Especially Aggravated Robbery (2012-B-1402).

c) On March 3, 2016, Ursery was sentenced in Davidson County Criminal Court, Nashville, Tennessee, for convictions for Aggravated Burglary (2015-C-1631).

(PSR, CR Doc. No. 71 at ¶ 21).

Although Petitioner was arrested and sentenced for the two robbery convictions on the same dates - November 3, 2011 (arrested), and October 29, 2012 (sentenced) - the convictions were for robberies that took place on separate dates - September 28, 2011, and October 16, 2011 - at separate locations, and had separate victims. (See CR Doc. No. 65-1, 65-2; PSR CR Doc. No. 71 at ¶¶ 29-30). The aggravated burglary conviction was committed on January 4, 2014. (PSR, CR Doc. No. 71 at ¶¶ 32).

As relevant here, Petitioner objected to his classification as an Armed Career Criminal, arguing that his facilitation convictions are not ACCA predicate offenses, and that they should not count as separate predicate offenses because “[t]he date of offense was not an element of the crime that Mr. Ursery pleaded guilty to, and the government has not shown through acceptable documentation that the offenses were committed on separate occasions.” (CR Doc. No. 63 at 6) (acknowledging contrary Sixth Circuit authority in United States v. Hennessee, 932 F.3d 437 (6th Cir. 2019)).^[2] Petitioner asserted that without the ACCA enhancement, he would have an advisory sentencing guidelines range of 57-71 months, with a statutory maximum penalty of 10 years. (Id. at 7). With the ACCA enhancement, his Guidelines Range was 180-188 months. (PSR, CR Doc. No. 71 at 24).

The Court overruled Petitioner's objection related to the basis on which the Court could determine that the offenses were committed on separate occasions. (Sentencing Trans., CR Doc. No. 74 at 7). The Court found that the offenses occurred on separate occasions because the state conviction records showed that the predicate offenses occurred on dates 19 days apart. (Id.). The Court also ruled that under United States v. Gloss, 661 F.3d 317 (6th Cir. 2011), facilitation of especially aggravated robbery is a violent felony. (Id. at 8).

Having found the sentencing enhancement under the ACCA applied, the Court imposed the mandatory minimum sentence of 180 months incarceration, and supervised release of two years. (See Judgment, CR Doc. No. 68).

On appeal, Petitioner raised two arguments: first, he argued that the prior felonies were not ACCA predicate offenses; second, he argued that the two facilitation convictions should count as a single predicate because, even though they were committed on different dates (19 days apart), the date of the offenses was not an element of the crime. See United States v. Ursery, Case No. 20 5218 (6th Cir. Dec. 3, 2020) (docketed at CR Doc. No. 76). The Sixth Circuit rejected both arguments and affirmed the judgment. Id. The Supreme Court denied certiorari. (See CR Doc. No. 79).

Petitioner now seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that his enhanced sentence under the ACCA was in error. (See Doc. No. 3).

II. LEGAL STANDARD

Petitioner brings this action pursuant to 28 U.S.C. § 2255. Section 2255 provides a statutory mechanism for challenging the imposition of a federal sentence:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

In order to obtain relief under Section 2255, a petitioner “must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)); see also, Wright v. Jones, 182 F.3d 458, 463 (6th Cir. 1999).

A Section 2255 motion is not a substitute for a direct appeal. Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003). Consequently, as a general rule, any claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the movant shows “(1) ‘cause' excusing [the] procedural default, and (2) ‘actual prejudice' resulting from the errors,” United States v. Frady, 456 U.S. 152, 168 (1982), or demonstrates that he is “actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). A claim of ineffective assistance of counsel is not subject to the procedural-default rule. Massaro v. United States, 538 U.S. 500 (2003). An ineffective-assistance claim may be raised in a collateral proceeding under Section 2255, regardless of whether the movant could have raised the claim on direct appeal. Id.

If a factual dispute arises in a Section 2255 proceeding, the court is to hold an evidentiary hearing to resolve the dispute. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). An evidentiary hearing is not required, however, if the record conclusively shows that the petitioner is not entitled to relief. 28 U.S.C. § 2255(b); Ray, 721 F.3d at 761; Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). Having reviewed the record in Petitioner's underlying criminal case, as well as the filings in this case, the Court finds it unnecessary to hold an evidentiary hearing because disposition of Petitioner's claims does not require the resolution of any factual dispute.

III. ANALYSIS

Petitioner now seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that his enhanced sentence under the ACCA was in error. (See Doc. No. 3). As stated above, the ACCA requires a mandatory minimum sentence for any person who has been convicted of being a felon in possession of a firearm and who has three previous convictions for violent felonies or serious drug offenses that were “committed on occasions different from one another.” 18 U.S.C. § 924(e). The ACCA defines “violent felony” as: “[A]ny 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).

Following Petitioner's sentencing and appeal, the Supreme Court has issued several opinions addressing a defendant's eligibility for enhanced sentencing under the ACCA that are directly relevant to these claims - United States v. Taylor, 596 U.S. 845, 850-52 (2022) (holding attempted Hobbs Act robbery is not a violent felony); Wooden v. United States, 595 U.S. 360 (2022) (discussing the factors to be considered to determine whether offenses were committed on separate occasions); and Erlinger v. United States, 602 U.S. 821 (2024) (holding that a defendant is entitled to have a jury determine beyond a reasonable doubt whether offenses were committed on separate occasions).

Petitioner now raises the following arguments: (1) the Court...