Crawford v. USA (RHC)
Filing
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MEMORANDUM OPINION. Signed by District Judge Thomas A Varlan on 6/4/19. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
JERRY LYNN CRAWFORD,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No.:
3:16-cv-297-TAV
MEMORANDUM OPINION
Presently before the Court is a motion to vacate, set aside, or correct sentence under
28 U.S.C. § 2255 [Doc. 1] filed by Jerry Lynn Crawford (“Petitioner”) seeking to challenge
his classification as an armed career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), in light of Johnson v. United States, 135 S. Ct. 2551 (2015).
For the following reasons Petitioner’s § 2255 motion [Doc. 1] will be DENIED, and this
action will be DISMISSED WITH PREJUDICE.
I.
PROCEDURAL BACKGROUND
On February 20, 2009, Petitioner pled guilty to two counts of possession with intent
to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1), one count of
possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c), and one count of possession of a firearm and ammunition by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) [Doc. 22 at No. 3:07-cr-153].
A presentence investigation report (“PSIR”) identified three previous Tennessee
state-court convictions for a violent felony, committed on occasions different from one
another, that qualified petitioner as an armed career criminal under the ACCA: two for
other-than-a-habitation burglary, and one for aggravated burglary [PSIR¶¶ 27, 34–36]. On
August 18, 2009, Petitioner was sentenced as an armed career criminal to a total term of
imprisonment of 248 months [Doc. 26 at No. 3:07-cr-153], later reduced to a total term of
imprisonment of 136 months [Doc. 33 at No. 3:07-cr-153].1 Petitioner did not appeal.
On June 6, 2016, Petitioner filed a § 2255 motion [Doc. 1] challenging his armedcareer-criminal classification and sentence under Johnson, in which the Supreme Court
determined that the residual clause of the ACCA is unconstitutionally vague in violation
of the Due Process Clause. 135 S. Ct. at 2563.
II.
LEGAL STANDARD
To obtain relief under 28 U.S.C. § 2255, 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.”
McPhearson v. United States, 675 F.3d 553, 558-59 (6th Cir. 2012) (quoting Mallett v.
United States, 334 F.3d 491, 496–97 (6th Cir. 2003)). He “must clear a significantly higher
The Bureau of Prisons’ inmate locator indicates that Petitioner was released from his
incarceration sentence on November 9, 2017. He is currently serving the 5-year term of supervised
release imposed on February 20, 2009 [Docs. 26, 33 at No. 3:07-cr-153]. Because Petitioner is
currently serving a term of supervised release, the Court assumes that she is “in custody” for
purpose of the instant motion. See, e.g., United States v. Zack, 173 F.3d 431, 1999 WL 96996 at,
*1 (6th Cir. February 1, 1999).
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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
A felon who possesses a firearm normally faces a maximum penalty of 10 years’
imprisonment, 18 U.S.C. § 924(a)(2), and 3 years’ supervised release, 18
U.S.C. 3559(a)(3) and 3583(b)(2). However, if that felon possesses the firearm after
having sustained three previous convictions “for a violent felony or serious drug offense,
or both,” the ACCA requires a 15-year minimum sentence, 18 U.S.C. § 924(e)(1), and
increases the maximum supervised release term to 5 years, 18 U.S.C. §§ 3559(a)(1) and
3583(b)(1).
The ACCA 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-ofphysical-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, the Supreme Court determined that the residual clause of the ACCA is
unconstitutionally vague and concluded “that imposing an increased sentence under the
residual clause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at
2563. However, Johnson did not invalidate “the remainder of the Act’s definition of a
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violent felony.” Id. Thus, for a § 2255 petitioner to obtain relief under Johnson, he must
show that his ACCA-enhanced sentence necessarily was based on a predicate violent
felony that qualified as such only under the residual clause. Potter v. United States, 887
F.3d 785, 788 (6th Cir. 2018). As a result, a defendant can properly receive an ACCAenhanced sentence post-Johnson based either on the statute’s use-of-force clause or
enumerated-offense clause. 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 enumerated-offense
clauses).
Here, Petitioner argues that his previous Tennessee convictions for other-than-ahabitation burglary and for aggravated burglary no longer qualify as predicate offenses in
light of Johnson. But each of Petitioner’s previous convictions qualify as predicate
offenses under the enumerated-offense clause of the ACCA, so relief is not warranted.
A.
Other-than-a-habitation burglary
The Tennessee burglary statute under which Petitioner was convicted provides that
an individual commits burglary when, “without the effective consent of the property
owner” he “enters a building other than a habitation (or any portion thereof) not open to
the public, with intent to commit a felony, theft or assault[.]” Tenn. Code Ann. § 39-14402(a)(1).
A burglary offense constitutes a predicate offense for purposes of the ACCA when
the offense’s statutory definition substantially corresponds to the “generic” definition of
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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).
Binding Sixth Circuit precedent holds that a violation of § 39-14-402(a)(1)
constitutes generic burglary, such that a violation of that part of the statute is a violent
felony under the enumerated-offense clause of the ACCA. United States v. Priddy, 808
F.3d 676, 683 (6th Cir. 2015).2 Therefore, Petitioner’s argument that his two burglary
convictions can no longer serve as ACCA predicates in light of Johnson fails to warrant
§ 2255 relief.
B.
Aggravated burglary
Under Tennessee law, aggravated burglary is the burglary of a habitation as defined
in the statute. Tenn. Code Ann. § 39-14-403(a). The Supreme Court has held that
aggravated burglary under Tennessee law is generic burglary within the meaning of the
ACCA. United States v. Stitt, 139 S. Ct. 399, 406–07 (2018). Accordingly, Petitioner’s
aggravated-burglary conviction likewise remains a conviction for a violent felony postJohnson under the enumerated-offense clause of the ACCA.
Priddy’s holding with respect to burglary (as opposed to aggravated burglary) remains
controlling law, subsequent procedural developments notwithstanding. See United States v. Stitt,
860 F.3d 854, 860 (6th Cir. 2017) (en banc) (abrogating Priddy’s aggravated-burglary holding),
rev’d, 139 S. Ct. 399, 202 L. Ed. 2d 364 (2018).
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III.
CONCLUSION
For the reasons set forth above, the Court finds that post-Johnson all three of
Petitioner’s previous Tennessee convictions remain predicate offenses under the
enumerated-offense clause of the ACCA. Accordingly, Petitioner’s § 2255 motion [Doc.
1] will be DENIED, and this action will be DISMISSED WITH PREJUDICE. Because
Petitioner has failed to make a substantial showing of the denial of a constitutional right, a
certificate of appealability will be DENIED, should Petitioner file a notice of appeal. Slack
v. McDaniel, 529 U.S. 473, 484 (2000). And because any appeal from this action would
not be taken in good faith and would be frivolous, any application by Petitioner for leave
to proceed in forma pauperis on appeal will be DENIED. See Fed. R. App. P. 24.
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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