Perry v. United States of America
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 9/5/2019. (JLC)
FILED
2019 Sep-05 PM 01:15
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TORACE D. PERRY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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2:16-CV-8043-KOB
MEMORANDUM OPINION
The movant Torace D. Perry filed a motion to vacate, set aside, or correct
his sentence on May 17, 2016,1 contending that the court should vacate his
conviction and sentence based on the Supreme Court’s decision in United States v.
Johnson, 135 S. Ct. 2551 (2015). In Johnson, the Supreme Court struck down the
“residual clause” in 18 U.S.C. § 924(e) of the Armed Career Criminal Act (ACCA)
as unconstitutionally vague. Johnson, 135 S. Ct. at 2557. Mr. Perry urges this
court to extend the holding in Johnson regarding the unconstitutionally vague
“residual clause” in § 924(e) to invalidate the binding plea agreement he entered
predicated on his belief that the ACCA would apply in his case. For the
1
Pursuant to the prisoner “mailbox rule,” the court deems the petition filed the date the
petitioner signed it and purportedly delivered it to prison officials. See Jeffries v. United States,
748 F.3d 1310, 1313, 1314 (11th Cir. 2014).
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following reasons, the court refuses to extend Johnson beyond its holding and
finds that Mr. Perry’s motion to vacate is untimely and due to be DENIED.
Procedural History
The Indictment charged Mr. Perry with being a felon in possession of a
firearm in Count One pursuant to 18 U.S.C. § 922(g)(1), and with unlawfully
possessing an unregistered sawed-off shotgun in Count Two pursuant to 26 U.S.C.
§ 5861(d). Mr. Perry pled guilty to only Count Two pursuant to a binding plea
agreement on June 26, 2014. (Doc. 16 in 2:14-cr-131). As part of that binding
plea agreement, the Government agreed to a sentence of 120 months imprisonment
and to dismiss Count One at the time of sentencing. The plea agreement
specifically states that Mr. Perry and the Government “intend to have the
defendant plead guilty to Count 2 and receive a 10-year sentence rather than risk a
mandatory 15-year sentence [under the ACCA], if convicted at trial under Count
1.” (Doc. 16 at 4 fn 1 in 2:14-cr-131).
The court accepted the binding plea agreement, and on November 3, 2014,
sentenced Mr. Perry to the agreed-upon 120 months imprisonment for Count Two;
the Government dismissed Count One. (Doc. 22 in 2:14-cr-131). Because the plea
agreement provided that the Government would dismiss the felon in possession
charge under Count One, the Pre-sentence Report did not include a
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recommendation that the court enhance Mr. Perry’s sentence pursuant to the
ACCA. (Doc. 20 in 2:14-cr-131 SEALED). Mr. Perry did not appeal his
conviction or sentence to the Eleventh Circuit.
Mr. Perry filed his motion to vacate more than two years later under 18
U.S.C. § 2255(f)(3), which allows a petitioner to file a motion to vacate within one
year from “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.” He claims that the
Supreme Court’s decision in Johnson makes his conviction and sentence
unconstitutional, and that the Supreme Court in Welch v. United States, 136 S. Ct.
1257 (2016) made the Johnson holding retroactive to cases on collateral review.
Specifically, Mr. Perry alleges that his three prior Georgia burglary
convictions that he claims the court determined to be violent felonies no longer
qualify as such under the ACCA after Johnson. He also claimed that he instructed
his counsel to file a direct appeal, but his counsel failed to do so. As such, he
asked the court to allow a “belated appeal” and “restore [his] right to appeal” his
case. (Doc. 1).
The court appointed counsel to represent Mr. Perry in this case and allowed
his counsel to file an amended motion. (Docs. 2 & 3). In his “Amended Motion to
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Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and
Memorandum in Support,” his counsel incorporated Mr. Perry’s ineffective
assistance of counsel claim based on the failure to file a direct appeal and further
explained that, after Johnson, Mr. Perry’s burglary convictions no longer qualified
as “crimes of violence” under either the force, enumerated offense, or residual
clauses of § 924(e)(2)(B)(i) or (ii).
The court ordered the Government to show cause why it should not grant
Mr. Perry the relief he seeks (doc. 9), and the Government responded; it argued
that the decision in Johnson does not apply because Mr. Perry was not sentenced
pursuant to the ACCA and Johnson provides no basis on which to invalidate the
binding plea agreement. The Government also argued alternatively that Johnson
was of no consequence because the Georgia burglary charges could still qualify as
predicate offenses under the enumerated clause that the Supreme Court did not
invalidate in Johnson (doc. 12).
The Government also argued that, because Johnson has no relevance to his
claim of ineffective assistance of counsel for failure to file a direct appeal, that
claim is untimely because Mr. Perry did not file it within one year after his
conviction became final on November 17, 2014, as required by 28 U.S.C. §
2255(f)(1).
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After reviewing the Government’s response, the court ordered Mr. Perry to
submit a reply. (Text Order, Doc. 13). Mr. Perry then submitted his reply to the
Government’s response. (Doc. 14). Unfortunately for Mr. Perry, Johnson does
not apply to his case and his habeas motion is untimely.
Discussion
In Johnson, the Supreme Court found the “residual clause” of the ACCA, 18
U.S.C. § 924(e), unconstitutionally vague. Under the ACCA, a defendant
convicted as a felon in possession of a firearm under 18 U.S.C. § 922(g) and who
has three prior “violent felonies” or serious drug offense faces an enhanced
mandatory minimum sentence of fifteen years. See 18 U.S.C. § 924(e)(1).
Section 924(e) defines a “violent felony” as any crime punishable by a term
of imprisonment 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 the 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). The first clause of the definition is the “elements
clause,” while the second clause contains the “enumerated crimes” and the
“residual clause” for crimes that “otherwise” involve the “serious potential risk of
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physical injury to another.” See Unites States v. Owens, 672 F.3d 966, 968 (11th
Cir. 2012). The Supreme Court in Johnson found the “residual clause” of the
ACCA “violent felony” definition unconstitutionally vague, but left in tact the
“elements clause” and the “enumerated crimes.” Johnson, 135 S. Ct. at 2563.
Mr. Johnson’s reliance on Johnson as the basis for a timely habeas petition
is misplaced. The holding in Johnson does not apply to Mr. Perry because the
court did not sentence him under the residual clause or any part of the ACCA.
Instead, Mr. Perry argues that the court should apply Johnson to invalidate his
binding plea agreement because he entered it believing that the ACCA would
apply and that he would face a mandatory minimum sentence of 15 years if the
Government did not agree to dismiss Count One. However, the holding in
Johnson does not extend its application to include invalidating a binding plea
agreement based on the premise that the ACCA would apply, and this court will
not do so.
Moreover, even assuming arguendo that Johnson’s holding somehow
provided a means to attack his binding plea agreement, the holding in that case
would still be of no consequence to Mr. Perry. Mr. Perry’s burglary convictions
under Georgia law at the time of his plea and today would qualify as “violent
felonies” under § 924(e)’s enumerated clause, which was left unscathed by the
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Johnson decision.
The enumerated clause specifically lists “burglary” as a “violent felony”
under the ACCA, but not every burglary fits the bill. The state burglary statute at
issue in the prior conviction must meet the elements of a “generic burglary.”
United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). At the time of Mr.
Perry’s plea and conviction, the Eleventh Circuit defined a “generic burglary” as
“an unlawful entry into a building or other structure with the intent to commit a
crime” and found that “Georgia’s burglary statute [was] non-generic because it
encompassed unlawful entry not just into buildings, but also into vehicles, railroad
cars, and watercraft.” Bennett, 472 F.3d at 832 (citing Taylor v. United States, 495
U.S. 575, 599 (1990)).
However, the Circuit Court found that the defendant’s
prior burglary convictions under the Georgia statute were violent felonies under
the ACCA because “court documents indicated, consistent with the descriptions in
the PSI, that at least four of Bennett’s prior burglary convictions were for
burglaries of either residential or commercial buildings,” meeting the elements of
a “generic burglary.” Bennett, 472 F.3d at 833.
In 2016, two years after Mr. Perry’s plea and conviction, the Eleventh
Circuit again examined the 2011 Georgia burglary statute, Ga. Code Ann.§ 16-7-1,
in United States v. Gundy and found that statute criminalized conduct that would
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satisfy all the elements of a generic burglary.2 However, the court in Gundy also
found that Georgia’s burglary statute at that time criminalized conduct “broader
than the ACCA’s generic definition of burglary” because it “encompassed not only
unlawful entry into buildings or other structures, but also into vehicles, railroad
cars, watercraft, or aircraft.” Gundy, 842 F.3d at 1164-65.
The court in Gundy held that the “alternative locational elements” in the
Georgia burglary statute are divisible, such that the court can use the “modified
categorical approach” to determine whether the elements of a defendant’s prior
burglary convictions match the generic definition of burglary. 842 F.3d 1156,
1168 (11th Cir. 2016). Under that approach, the court can examine “‘a limited
class of documents (for example, the indictment, jury instructions or plea
agreement and colloquy)’” to determine if a defendant’s conviction met the
generic definition of burglary under the ACCA. Gundy, 842 F.3d at 1168 (quoting
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)).
Under the analysis in either Bennett or Gundy to Mr. Perry’s 2014 plea and
conviction, all three of Mr. Perry’s Georgia burglary convictions would have
2
The 2011 version of the Georgia burglary statute, Ga. Code Ann. § 16-7-1, examined by
the Eleventh Circuit in Bennett and Gundy is the same statute to which Mr. Perry pled guilty in
his three counts of burglary in 1998. See Gundy, 842 F.3d at 1164 n.3; see also (Doc. 8 at 1012). Georgia’s burglary statute was amended on July 1, 2012, and had not been amended since
1980. See 2012 Ga. Laws 899; 1980 Ga. Laws 770.
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qualified as violent felonies under the enumerated clause of the ACCA. The Presentence Report in Mr. Perry’s criminal case states that the charging documents
for those Georgia convictions indicate they were for burglaries of “dwellings” of
individuals. See (Doc. 20 in 2:14-cr-131-KOB-SGC). Moreover, Mr. Perry
attached the indictment for those Georgia burglary convictions to his amended
motion to vacate; the indictment clearly charges Mr. Perry with entering “dwelling
houses” of individuals with the intent to commit a theft. (Doc. 8 at 10-12).
Therefore, Mr. Perry’s Georgia convictions would have qualified as violent
felonies under the enumerated clause of the ACCA at the time of his plea and
conviction and today. Nothing in Johnson would change that fact. Therefore, Mr.
Perry’s reliance on Johnson as the basis for a timely motion to vacate fails.
Also, Mr. Perry’s ineffective assistance of counsel claim based on a failure
to file an appeal is untimely. (Doc. 1 at 6). The holding in Johnson has no
relevance to that ground for Mr. Perry’s habeas motion and cannot serve as the
basis to extend the limitations period for that ground under § 2255(f)(3). Because
Mr. Perry did not file that claim in a habeas motion within one year of his
conviction—by November 17, 2014— as required by § 2255(f)(1), that claim is
time-barred. Moreover, Mr. Perry makes no argument that the court should apply
equitable tolling for this claim, nor does the court see any ground in the record for
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it to do so. As such, that claim is also time-barred.
So, the court finds that Mr. Perry is not entitled to relief from his sentence
based on the Supreme Court’s holding in Johnson and that his motion to vacate is
untimely and should be denied.
The court will enter a separate Order in conformity with this Memorandum
Opinion.
DONE and ORDERED this 5th day of September, 2019.
____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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