Tolliver v. USA
Filing
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MEMORANDUM OPINION: Tolliver has failed to establish any basis upon which § 2255 relief could be granted, and his § 2255 motion will be DENIED. A COA from the denial of his §2255 motion will be DENIED. An appropriate Judgment Order will enter.Signed by District Judge Harry S Mattice, Jr on 7/11/19. (AWS) Mailed to Danetrius J Tolliver.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
DANETRIUS J. TOLLIVER,
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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
No.:
1:18-CV-150-HSM
MEMORANDUM OPINION
Federal inmate Danetrius J. Tolliver has filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, to which the United States has responded. Tolliver has not
filed a reply, and the deadline to do so has passed. Having considered the pleadings and the record,
along with the relevant law, the Court finds that there is no necessity for an evidentiary hearing1,
and Tolliver’ § 2255 motion will be denied.
I.
BACKGROUND FACTS AND PROCEDURAL HISTORY
After “drinking and using cocaine” one evening in 2016, Tolliver kicked open the door of
an occupied house to “settle a score” with one of the residents [Doc. 19 pp. 1-2 in No. 1:16-CR42]. The occupants called the police, and Tolliver fled, with the police in pursuit [Id.]. The chase
ended when Tolliver crashed his truck [Id. at 2]. Inside Tolliver’s truck, police found a stolen
firearm [Id.]. Tolliver admitted that he had been carrying the firearm during the home invasion
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An evidentiary hearing is required on a § 2255 motion unless the motion, files, and record
conclusively show that the prisoner is not entitled to relief. See 28 U.S.C. § 2255(b). It is the
prisoner’s ultimate burden, however, to sustain his claims by a preponderance of the evidence. See
Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). Accordingly, where “the record
conclusively shows that the petitioner is entitled to no relief,” a hearing is not required. Arredondo
v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (citation omitted).
and subsequently pleaded guilty to possessing a firearm as a felon in violation of 18 U.S.C. §
922(g)(1) [Id. at 2; Doc. 20 in No. 1:16-CR-42].
Based on his five prior Tennessee burglary convictions, Tolliver was deemed an armed
career criminal under the Armed Career Criminal Act (“ACCA”) [Doc. 30 ¶¶ 30-31 in No. 1:16CR-42]. Tolliver objected to the classification, arguing, in part, that Tennessee burglary is not a
violent felony under the ACCA [Doc. 23 p. 3-4 in No. 1:16-CR-42]. This Court rejected that
argument and sentenced Tolliver to 180 months’ imprisonment [Doc. 46 p. 20-27 in No. 1:16-CR42; Doc. 38 in No. 1:16-CR-42]. The Sixth Circuit affirmed Tolliver’s conviction and sentence
on appeal, and the Supreme Court denied certiorari [Docs. 48 and 52 in No. 1:16-CR-42].
In July 2018, Tolliver filed the instant motion contesting his armed career criminal
classification in light of Johnson v. United States, 135 S. Ct. 2551 (2015), Mathis v. United States,
136 S. Ct. 2243 (2016), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018) [Docs. 1 and 2]. The
Court ordered the United States to respond to the motion, and it did so by filing its response on
May 10, 2019 [Doc. 8]. Tolliver did not file a reply [See Doc. 5].
II.
LEGAL STANDARD
After a defendant has been convicted and exhausted his appeal rights, a court may presume
that “he stands fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982). A
court may grant relief under 28 U.S.C. § 2255, but the statute “does not encompass all claimed
errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979).
Rather, collateral attack limits a movant’s allegations to those of constitutional or jurisdictional
magnitude, or those containing factual or legal errors “so fundamental as to render the entire
proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation omitted);
see also 28 U.S.C. § 2255(a).
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III.
DISCUSSION
The ACCA requires a 15-year minimum sentence for a felon who unlawfully possesses a
firearm after having sustained three prior convictions “for a violent felony or a serious drug
offense, or both.” 18 U.S.C. § 924(e)(1). The statute 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-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 v. United States, the Supreme Court struck down the residual clause of the
ACCA as unconstitutionally vague and violative of due process. Johnson, 135 S. Ct. at 2563.
However, Johnson did not invalidate “the remainder of the Act’s definition of a violent felony.”
Id. Therefore, for a § 2255 petitioner to obtain relief under Johnson, he must show that his ACCAenhanced sentence was necessarily based on a predicate violent felony that only qualified as such
under the residual clause. See, e.g., Potter v. United States, 887 F.3d 785, 788 (6th Cir. 6018).
Accordingly, post-Johnson, a defendant can properly receive an ACCA-enhanced sentence based
either on the statute’s use-of-force or enumerated-offense clauses. United States v. Priddy, 808
F.3d 676, 683 (6th Cir. 2015); see also United States v. Taylor, 800 F.3d 701, 719 (6th Cir. 2015)
(affirming ACCA sentence where prior convictions qualified under use-of-force and enumeratedoffense clauses).
In evaluating whether a conviction qualifies as a predicate offense under the ACCA’s
enumerated-offense clause, courts apply a “categorical approach,” which requires the reviewing
court to compare the elements of the statute of conviction with the “generic elements” of the
offense. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016); Descamps v. United States, 570
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U.S. 254, 257 (2013). If the statute of conviction is broader than that criminalizing the generic
offense, then it cannot qualify as a violent felony, regardless of the facts comprising the offense.
See, e.g., Mathis, 136 S. Ct. at 2248-49.
A burglary offense constitutes a predicate offense for purposes of the enumerated-offense
clause of the ACCA when the offense’s statutory definition substantially corresponds to the
“generic” definition of burglary, which the Supreme Court has defined as “any crime, regardless
of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495
U.S. 575, 599 (1990).
Tolliver’s claim that his prior Tennessee convictions for Class D burglary can no longer be
counted as violent felonies after the Supreme Court’s decisions in Johnson and Mathis fails. Both
of these cases were decided before Tolliver’s direct appeal was finalized, and the Sixth Circuit
determined that his prior Tennessee burglary convictions qualified as violent felonies [Doc. 48 in
No. 1:16-CR-42].
Moreover, the Supreme Court has held that aggravated burglary under
Tennessee law is generic burglary within the meaning of the ACCA, and thus, a conviction under
the statute is a violent felony under the ACCA’s enumerated-offense clause. United States v. Stitt,
139 S. Ct. 399, 406-07 (2018). Finally, Dimaya offers Tolliver no relief, as it did not modify any
portion of the ACCA, but rather, invalidated the residual clause in 18 U.S.C. § 16(b)’s definition
of “crime of violence.” Dimaya, 138 S. Ct. at 1215-16. Therefore, Tolliver’s burglary convictions
qualify as ACCA predicates, and he is properly classified as an armed career criminal.
IV.
CERTIFICATE OF APPEALABILITY
When considering a § 2255 motion, this Court must “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rule 11 of the Rules Governing
Section 2255 Proceedings for the United States District Courts. Tolliver must obtain a COA before
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he may appeal the denial of his § 2255 motion. 28 U.S.C. § 2253(c)(1)(B). A COA will issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). For cases rejected on their merits, a movant “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong” to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on
a claim that has been rejected on procedural grounds, a movant must demonstrate “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should
not issue in this cause.
V.
CONCLUSION
For the reasons stated herein, Tolliver has failed to establish any basis upon which § 2255
relief could be granted, and his § 2255 motion will be DENIED. A COA from the denial of his §
2255 motion will be DENIED.
An appropriate Judgment Order will enter.
/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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