Tannehill v. United States of America

Filing 22

MEMORANDUM OPINION - For these reasons, the court concludes that Petitioners Motion is due to be dismissed with prejudice. An Order consistent with this Memorandum Opinion will be entered. Signed by Judge R David Proctor on 4/24/2018. (KEK)

FILED
2018 Apr-24 AM 11:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CALVIN FITZGERALD TANNEHILL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No.: 2:16-cv-08085-RDP
(2:07-cr-00115-RDP-SGC)

MEMORANDUM OPINION
Before the court is the Motion to Vacate, Set Aside, or Correct Sentence filed by
Petitioner Calvin Fitzgerald Tannehill (“Petitioner” or “Tannehill”) on June 23, 2016, pursuant to
28 U.S.C. § 2255. (Case No. 2:16-cv-08085-RDP, Doc. # 1). The Motion has been fully
briefed.1 (Case No. 2:16-cv-08085-RDP, Docs. # 1, 7, 10). After careful review, and for the
reasons discussed below, Petitioner’s Motion is due to be dismissed with prejudice.
I.

Factual Background and Procedural History
On March 15, 2007, agents from the Bureau of Alcohol, Tobacco, Firearms, and

Explosives executed a search warrant on Tannehill’s residence and discovered several guns,
ammunition, digital scales with cocaine residue on them, and over eleven grams of crack
cocaine. (Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 41 at 2). On July 25, 2007, a jury
convicted Tannehill of the following federal offenses: (1) felon in possession of firearms, in
violation of 18 U.S.C. § 922(g)(1), (“Count One”); (2) possession with the intent to distribute

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Petitioner has also filed supplemental authorities to support his Motion. (Case No. 2:16-cv-08085-RDP, Docs.
# 11, 13, 18, 19, 21).

five grams or more of a mixture and substance containing cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B), (“Count Two”); and (3) possession of a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), (“Count Three”). (See Case
No. 2:07-cr-00115-RDP-SGC-1, Doc. # 48). Because Tannehill had previously been convicted
of “seven violent felonies” (four burglary convictions and three escape convictions), he was
considered an armed career criminal, and Count One was enhanced under 18 U.S.C. § 924(e)(1).
(Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 59 at ¶ 26). Ultimately, the court sentenced
Tannehill to be imprisoned for 235 months as to Counts One and Two, to run concurrently with
each other, and for 60 months as to Count Three, to run consecutively with the sentences in
Counts One and Two. (Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 61).
Tannehill appealed to the United States Court of Appeals for the Eleventh Circuit. (See
Case No. 2:07-cr-00115-RDP-SGC-1, Docs. # 64-66).

The Eleventh Circuit affirmed

Tannehill’s convictions on December 30, 2008. United States v. Tannehill, 305 Fed. App’x 612
(11th Cir. 2008). Tannehill did not seek certiorari review in the Supreme Court. On February
25, 2009, Tannehill filed a pro se motion in this court pursuant to 18 U.S.C. § 3582(c), seeking
application of an amendment to the sentencing guidelines. (Case No. 2:07-cr-00115-RDP-SGC1, Doc. # 81). The court denied that motion. (Case No. 2:07-cr-00115-RDP-SGC-1, Docs. # 86,
87). The Eleventh Circuit affirmed the denial of the § 3582(c) motion. United States v.
Tannehill, 344 Fed. App’x 576 (11th Cir. 2009).
On March 16, 2009, Tannehill filed a motion to vacate his federal sentence pursuant to 28
U.S.C. § 2255. (Case No. 2:09-cv-08008-RDP-PWG, Docs. # 1, 3). That motion was denied on
March 28, 2012. (Case No. 2:09-cv-08008-RDP-PWG, Docs. # 41, 42). Tannehill sought
review of that decision, but the Eleventh Circuit twice denied Tannehill a Certificate of

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Appealability. (Case No. 2:09-cv-08008-RDP-PWG, Docs. # 54, 67). On January 8, 2015,
Tannehill moved to reopen his § 2255 proceeding, and that motion was later denied. (Case No.
2:09-cv-08008-RDP-PWG, Docs. # 68, 71).
On April 14, 2016, Tannehill filed a petition for writ of habeas corpus pursuant to 28
U.S.C. §§ 2241 and 2255(e). (Case No. 2:16-cv-8026-RDP, Doc. # 1). After Tannehill moved
to withdraw that petition, the court dismissed it without prejudice and suggested that Tannehill
contact the Eleventh Circuit to inquire about an application to file a second or successive § 2255
motion. (Case No. 2:16-cv-8026-RDP, Docs. # 2, 3). On July 6, 2016, the Eleventh Circuit
authorized this pending § 2255 Motion, which Tannehill filed on June 23, 2016. (Case No. 2:16cv-08085-RDP, Docs. # 1, 2).
II.

Jurisdiction
The instant Motion is a successive § 2255 petition. A second or successive motion under

28 U.S.C. § 2255 “must be certified as provided in section 2244 by a panel of the appropriate
court of appeals.” 28 U.S.C. § 2255. Section 2244 provides that “before a second or successive
application permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A). Absent an order from the court of appeals authorizing
the consideration of the application, “the district court lacks jurisdiction to consider a second or
successive petition.” Farris v. United States, 333 F. 3d 1211, 1216 (11th Cir. 2003); see also
United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). Here, The Eleventh Circuit has
authorized Petitioner to file this successive § 2255 Motion. (Case No. 2:16-cv-08085-RDP, Doc.
# 2). Accordingly, this court has jurisdiction to consider Petitioner’s Motion.

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III.

Analysis
A federal prisoner may file a motion to vacate his or her sentence “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.” 28 U.S.C. § 2255(a).
In Johnson v. United States, the Supreme Court held that imposing an increased sentence under
the residual clause of the Armed Career Criminal Act (“ACCA”) violates the Fifth Amendment’s
guarantee of due process because the residual clause is unconstitutionally vague. 135 S. Ct.
2551, 2563 (2015). This ruling applies retroactively to cases on collateral review. See Welch v.
United States, 136 S. Ct. 1257, 1265 (2016). Johnson did not affect the enumerated offenses
clause and the elements clause of the ACCA. See generally 135 S. Ct. 2551; see also Beeman v.
United States, 871 F.3d 1215, 1221 (11th Cir. 2017) (noting that the enumerated offense clause
and the elements clause were not called into question by Johnson).
A.

Petitioner Has Not Presented a Johnson Claim

“To prove a Johnson claim, a movant must establish that his sentence enhancement
‘turn[ed] on the validity of the residual clause.’” Beeman, 871 F.3d at 1221. A Johnson
violation only occurs if the movant would not have been sentenced as an armed career criminal
absent the existence of the residual clause. Id. When explaining a petitioner’s burden of proving
that his sentencing enhancement was imposed because the sentencing court used the residual
clause, the Eleventh Circuit explained:
To prove a Johnson claim, the movant must show that—more
likely than not—it was use of the residual clause that led to the
sentencing court’s enhancement of his sentence. If it is just as
likely that the sentencing court relied on the elements or
enumerated offenses clause, solely or as an alternative basis for the

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enhancement, then the movant has failed to show that his
enhancement was due to use of the residual clause.
Id. at 1221-22. In this case, Petitioner’s claim is not a Johnson claim because there is no
evidence (and, in fact, there is evidence to the contrary) that the sentencing court relied on the
residual clause of the ACCA in enhancing his sentence.
Petitioner was sentenced as an armed career criminal based on the elements and
enumerated offenses clauses of the ACCA, without a single mention of the ACCA’s residual
clause. (See Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 59 at 8-25). In outlining his criminal
history, Tannehill’s Presentence Investigation Report (“PSR”) notes each violent felony offense
necessary for application of the enhanced penalties at 18 U.S.C. § 924(e)(1). (See Case No.
2:07-cr-00115-RDP-SGC-1, Doc. # 59 at 8-25). Specifically, the PSR indicates the language in
§ 924(e)(2)(B) that describes each of these burglary and escape2 convictions as a “violent
felony.” (See id.). The burglary convictions were listed under both the “elements clause” and
the “enumerated-offense clause” of § 924(e)(2)(B). (Id. at ¶¶ 42-44, 46) (“This conviction meets
the criteria for ‘violent felony’ within the meaning of 18 U.S.C. § 924(e)(2)(B)(i) and (ii)
because it is a crime punishable by imprisonment for a term exceeding one year; it was
committed on an occasion different from others . . . ; and it has an element the use, attempted
use, or threatened use of physical force against the person of another; and it is a burglary.”).
Accordingly, the PSR stated that each of the four burglaries qualified as a predicate felony under
the elements clause and the enumerated offense clause, not the residual clause.

(See id.).

The escape convictions were listed under the “elements clause” of § 924(e)(2)(B). (Id. at ¶¶ 40, 45, 52) (“This
conviction meets the criteria for ‘violent felony’ within the meaning of 18 U.S.C. § 924(e)(2)(B)(i) because it is a
crime punishable by imprisonment for a term exceeding one year; it was committed on an occasion different from
others . . . ; and it has an element the use, attempted use, or threatened use of physical force against the person of
another.”). The court need not explore whether Tannehill’s three escape convictions remain predicate felonies under
the ACCA because, even in their absence, Tannehill had four burglary convictions that qualified him as an armed
career criminal based on the factual descriptions in the PSR.
2

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Furthermore, nothing in the record indicates that this court considered the ACCA’s residual
clause in relation to Tannehill’s prior burglary convictions during his sentencing.
As the Eleventh Circuit concluded in Beeman, Petitioner bears the burden of proving that
the use of the residual clause led the sentencing court to enhance his sentence. See 871 F.3d at
1221-22. Petitioner contends that, despite the clear invocation of the elements clause and the
enumerated offenses clause of the ACCA in the PSR, the sentencing court relied on the residual
clause when it enhanced his sentence. (See Case No. 2:16-cv-08085-RDP, Docs. # 1, 10).
However, Petitioner has not offered any evidence showing that at sentencing the court relied on
the residual clause when it enhanced Petitioner’s sentence. At most, Petitioner has established
that it is just as likely the sentencing court was relying on the elements and enumerated offenses
clauses as it was relying on the residual clause, in which case Petitioner has failed to meet his
burden. See Beeman, 871 F.3d at 1222.
Ultimately, Petitioner’s claim amounts to a challenge to the underlying finding of the
sentencing court that he was an armed career criminal subject to the elements clause and
enumerated offenses clause of the ACCA.3 Citing to Descamps v. United States, 570 U.S. 254
(2013), Petitioner argues that the Pennsylvania burglary statute under which he was sentenced is
broader than the general definition of burglary. (See Case No. 2:16-cv-08085-RDP, Docs. # 1,
10). The court need not explore whether this argument holds merit because Tannehill’s burglary
convictions were not listed under the residual clause, and this argument does not present a
Johnson claim. See Beeman, 871 F.3d at 1221. Thus, as explained in more detail below, this
argument is untimely. See 28 U.S.C. § 2255(f). Petitioner failed to raise this claim on direct
appeal and has, therefore, defaulted any claim based on the underlying findings of the sentencing
3

Notably, although Tannehill filed objections to the PSR, he did not object to the characterization of his prior
burglary convictions as violent felonies. (See Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 57).

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court. See McCoy v. United States, 266 F.3d 1245, 1259 (11th Cir. 2001). Petitioner cannot use
the Supreme Court’s decision in Johnson to circumvent the applicable statute of limitations and
bring a claim that is not tied to the new right recognized in Johnson.
B.

Petitioner’s Motion Is Time-Barred

A § 2255 motion is subject to a one-year period of limitations. See 28 U.S.C. § 2255(f).
Most commonly the limitations period runs from the date on which “the judgment of conviction
becomes final.” 28 U.S.C. § 2255(f)(1). If a § 2255 motion is based on a newly-recognized
right made retroactively applicable to cases on collateral review by the Supreme Court, the
limitations period runs from the date on which the right asserted was initially recognized by the
Supreme Court. Id. at § 2255(f)(3). Because Petitioner’s claim is not properly based on the
newly recognized right in Johnson, the applicable limitations period began to run on the date on
which the judgment of conviction became final, December 30, 2008, and Petitioner had until
December 30, 2009 to file a § 2255 motion. This motion was filed in June of 2016 (Doc. # 1);
therefore, it is barred by the applicable one-year period of limitations. See 28 U.S.C. § 2255(f).
IV.

Conclusion
For these reasons, the court concludes that Petitioner’s Motion is due to be dismissed

with prejudice. An Order consistent with this Memorandum Opinion will be entered.
DONE and ORDERED this April 24, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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