Hurst v. USA
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 8/8/19. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
SCOTTIE HURST,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Nos. 3:97-CR-151; 3:16-CV-361
Judge Jordan
MEMORANDUM OPINION
Before the Court are Petitioner Scottie Hurst’s counseled motion to vacate, set aside or
correct sentence under 28 U.S.C. § 2255 and the United States’ motion to deny the § 2255 motion
and dismiss the action with prejudice [Docs. 1, 5]. 1 Also before the Court are Petitioner’s motion
to defer ruling on his § 2255 motion pending Supreme Court certiorari review in Raybon v. United
States, 867 F.3d 625 (6th Cir. 2017), and the United States’ response to the § 2255 petition [Docs.
11, 14]. For the reasons that follow, the Court will GRANT the United States’ motion to deny
and dismiss this action [Doc. 5] and will DENY Petitioner’s motion to defer ruling [Doc. 11]
I.
RELEVANT BACKGROUND FACTS AND PROCEDURAL HISTORY
In 1997, a jury convicted Petitioner of all seven counts of an indictment charging him with
Conspiracy to Transport and Possess Stolen Firearms and Ammunition in Interstate Commerce, in
violation of 18 U.S.C. § 371 (Count One); Possession of Stolen Firearms and Ammunition, in
violation of 18 U.S.C. § 922(j) (Counts Two, Three and Five); Aiding and Abetting in the
Transportation of Stolen Firearms in Interstate Commerce, in violation of 18 U.S.C. § 922(i)
1
Unless otherwise indicated, document references in this Opinion are to Case No. 3:16-CV-361.
(Count 4); and Being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g) (Counts
Six and Seven) [Docs. 1 (Indictment) and 74 (Verdict), Case No. 3:97-CR-151]. In Petitioner’s
presentence investigation report (“PSR”) prepared thereafter, the probation officer determined that
Petitioner had a prior felony conviction for a crime of violence [PSR at ¶ 10]. The prior felony
conviction for a violent crime called for a base level offense of 20 [Id.]. Enhancements and an
upward adjustment resulted in a total offense level of 34 [Id. at ¶¶ 12-13, 17, and 19]. Based on
Petitioner’s total offense level of 34 and his criminal history category of VI, his Guidelines range
was calculated to be 262 to 327 months [Id. at ¶¶ 46, 65].
On December 11, 1998, Petitioner was sentenced, under the then mandatory Guidelines, to
a total sentence of 288 months’ imprisonment (consisting of 60 months on Count One, 120 months
on Count Two, and 108 months each on Counts Three through Seven, with the sentences on Counts
One through Three to run consecutive) [Docs. 92 (minutes) and 98, Judgment, Case No. 3:97-CR151]. Petitioner appealed, and the Sixth Circuit affirmed his conviction and sentence on September
22, 2000. United States v. Hurst, 228 F.3d 751 (6th Cir. 2000). Petitioner did not pursue certiorari
review in the Supreme Court. On June 22, 2016, Petitioner filed this counseled motion to vacate
[Doc. 1].
Petitioner’s § 2255 motion relies on the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed Career
Criminal Act (“ACCA”) as unconstitutionally vague 2 [Doc. 1]. Johnson, 135 S. Ct. at 2563
(holding “that imposing an increased sentence under the residual clause . . . violates the
Constitution’s guarantee of due process”). Petitioner argues that, pursuant to Johnson’s reasoning,
2
The ACCA defines a “violent felony,” in part, as a crime “that “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) (Emphasis added). Johnson invalidated the italicized part of the
definition as vague. 135 S. Ct. at 2563.
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he no longer has a qualifying predicate offense classified as a “crime of violence” that can be used
to enhance his base level offense under USSG § 2K2.1 [Id. at 1]. 3
The United States opposes the § 2255 motion, asserting that Johnson’s holding was limited
to the residual clause of the ACCA and that Petitioner has not shown that Johnson applies
retroactively to the Guidelines on collateral review [Doc. 2 at 2]. Citing Beckles v. United States,
137 S. Ct. 886, 895 (2017), Respondent also maintains the Supreme Court has held explicitly that
the advisory Sentencing Guidelines are not subject to vagueness challenges under the Due Process
Clause and that USSG § 4B1.2’s residual clause is not void for vagueness [Doc. 5 at 1].
Respondent further maintains that Beckles conclusively establishes that Petitioner’s § 2255 motion
is groundless and, therefore, subject to dismissal on the merits for failure to state a claim [Id. at 3].
Respondent submits, as an additional basis for dismissal, that Petitioner’s motion is untimely, in
light of the ruling in Raybon [Doc. 14, Response].
II.
DISCUSSION
Petitions under 28 U.S.C. § 2255 asking for collateral relief are subject to a one-year statute
of limitation, running from one of four dates. 28 U.S.C. § 2255(f)(1)-(4). Usually, the date on
which the judgment of conviction becomes final is the relevant date. 28 U.S.C. § 2255(f)(1).
However, a new statute of limitation is triggered for claims based on a right which “was initially
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For firearms offenses, the Sentencing Guidelines establish a sliding scale of base offense levels from 6 to
26 and call for an offense level of 20 if a defendant commits the offense “subsequent to sustaining one
felony conviction of either a crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(4).
The Guidelines define “crime of violence” as “any offense . . . 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 of a dwelling, arson, or extortion,
[or] 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”). USSG. § 4B1.2(a).
Thus, a “crime of violence” under the Guidelines is defined in an almost identical manner as “violent
felony” under the ACCA. See USSG § 4B1.2(a) (adopting identical use-of-force and residual clauses as
well as a nearly identical enumerated-offense clause); see also § 2K2.1 & cmt. (n1) (instructing that “crime
of violence” has the meaning given the term in §4B1.2(a)).
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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.” 28 U.S.C. § 2255(f)(3).
Under subsection one, i.e., § 2255(f)(1), the one-year limitations period begins to run on
the date a conviction becomes final. The Sixth Circuit decided Petitioner’s direct appeal on
September 22, 2000. Hurst, 228 F.3d at 75. As noted, Petitioner did not seek certiorari review in
the Supreme Court. Hence, ninety days later, upon the lapse of the period for petitioning the
Supreme Court for certiorari review, see Sup. Ct. R. 13.1, Petitioner’s conviction became final.
Clay v. United States, 537 U.S. 522, 525 (2003) (holding that “a judgment of conviction becomes
final when the time expires for filing a petition for certiorari contesting the appellate court’s
affirmation of the conviction”). The ninetieth day fell on Friday, December 22, 2000 (September
23, 2000, plus ninety days). 4 Petitioner could have filed a timely § 2255 petition within one year
of that date, i.e., by December 22, 2001. Petitioner did not file a § 2255 motion until June 22,
2016, fifteen years and six months too late under § 2255(f)(1).
Under subsection three, a petition is timely so long as it is filed within one year after the
Supreme Court issues an opinion newly recognizing a right and holding that it applies retroactively
to cases on collateral review. 28 U.S.C. § 2255(f)(3). As the Court has observed, Beckles ruled
that the advisory Guidelines residual clause in USSG 4B1.2(a), unlike the residual clause in the
ACCA that Johnson struck down as unconstitutionally vague, is not subject to a void-forvagueness challenge. Beckles, 137 S. Ct. at 892. Because Petitioner has not identified any new
right recognized by the Supreme Court and made retroactive on collateral review that would trigger
4
Rule 6(a)(1) of the Federal Rules of Civil Procedure directs that the day of the event that triggers a period
that is stated in days is excluded from the computation of that period. See Rule 12, Rules Governing § 2255
Proceedings (permitting application of the Federal Rules of Civil Procedure that are not inconsistent with
statutory provisions or the § 2255 Rules). Therefore, the computation of Petitioner’s 90-day period
excludes September 22, 2000, and starts on Saturday, September 23, 2000.
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a new statute of limitations for a residual-clause claim arising under the mandatory Sentencing
Guidelines, § 2255(f)(3) affords him no refuge.
The Court’s conclusion that Johnson does not give Petitioner a new limitations period
under § 2255(f)(3) is bolstered by Raybon. In Raybon, the Sixth Circuit explained that the law
was unsettled as to whether Johnson applies to the residual clause in the mandatory Guidelines,
meaning that Johnson did not recognize a new right to have a base level offense determined
without reference to the “crime of violence” definition set forth in the residual clause in the
mandatory Guidelines.
See Raybon, 867 F.3d at 630 (“Because [Johnson’s application to
mandatory sentencing guidelines] is an open question, it is not a ‘right’ that ‘has been newly
recognized by the Supreme Court’ let alone one that was ‘made retroactively applicable to cases
on collateral review.’”), and at 630-31 (observing that § 2255(f)(3) does not save an untimely
motion seeking “the recognition of a new right . . . —that individuals have a Constitutional right
not to be sentenced as career offenders under the residual clause of the mandatory Sentencing
Guidelines”); see also Russo v. United States, 902 F.3d 880, 882 (8th Cir. 2018) (explaining that
“the timeliness of [a movant’s] claim depends on whether he is asserting the right initially
recognized in Johnson or whether he is asserting a different right that would require the creation
of a second new rule”), cert. denied, 139 S. Ct. 1297 (2019).
Finally, § 2255(f)’s statute of limitation is not jurisdictional and is subject to equitable
tolling. Shelton v. United States, 800 F.3d 292 (6th Cir. 2015); Dunlap v. United States, 250 F.3d
1001, 1007 (6th Cir. 2001), abrogated on other grounds by Hall v. Warden, 662 F.3d 745 (6th Cir.
2011). The one-year period in § 2255(f) may be equitably tolled for an otherwise untimely motion
to vacate where a petitioner shows “that he has been pursuing his rights diligently . . . [a]nd . . .
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that some extraordinary circumstance stood in his way and prevented timely filing. Jones v. United
States, 689 F.3d 621, 626–27 (6th Cir. 2012) (citation omitted).
Petitioner has not alleged, and the record does not disclose, that equitable tolling of §
2255(f)’s limitation statute is appropriate in his case. Therefore, equitable tolling does not apply
to rescue Petitioner’s untimely motion to vacate.
As evidenced by the above discussion, Johnson has no application in Petitioner’s case.
Therefore, Petitioner’s sentencing claim, constructed on Johnson, provides no basis for relief and
is untimely under both §§ 2255(f)(1) and (f)(3).
III.
CONCLUSION
Based on the above law and analysis, the United States’ motion to deny and dismiss
Petitioner’s § 2255 motion [Doc. 5] will be GRANTED and Petitioner’s § 2255 motion will be
DENIED and DISMISSED with prejudice. Because Petitioner’s motion to vacate will be denied,
his motion to defer ruling on his § 2255 motion [Doc. 11] will be DENIED as moot.
IV.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if a petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner
whose claims have been rejected on the merits satisfies the requirements of § 2253(c) by showing
that jurists of reason would find the assessment of the claims debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). A petitioner whose claims have been rejected on a
procedural basis must demonstrate that reasonable jurists would debate the correctness of the
Court’s procedural ruling. Id.; Porterfield v. Bell, 258 F.3d 484, 485-86 (6th Cir. 2001). If there
is a plain procedural bar and the district court is correct to invoke it to resolve the case, and a
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reasonable jurist could not find that either that the dismissal was error or that a petitioner should
be allowed to proceed further, a COA should not issue. Slack, 529 at 484.
Having examined Petitioner’s Johnson claim under the Slack standard, the Court finds that
reasonable jurists could not find that its rulings on the claim were debatable or wrong. Because
reasonable jurists could not disagree with the Court’s denial of the § 2255 motion and could not
conclude that an issue offered in the motion is “adequate to deserve encouragement to proceed
further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), the Court will DENY issuance of a
certificate of appealability. Fed. R. App. P. 22(b). The Court will CERTIFY that any appeal from
this action would not be taken in good faith, Fed. R. App. P. 24(a), and consequently will DENY
Petitioner leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge
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