Hill v. United States of America

Filing 12

MEMORANDUM signed by Chief Judge Waverly D. Crenshaw, Jr on 11/30/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION

PATRICK WADE HILL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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NO. 1:16-cv-00043
CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION
I. Introduction
Pending before the Court are the Petitioner’s Motion To Vacate, Set Aside, Or Correct
Sentence In Accordance With 28 U.S.C. § 2255 (Doc. No. 1); the Government’s Response (Doc.
No. 5); the Government’s Supplemental Brief (Doc. No. 8); the Petitioner’s Reply (Doc. No. 10);
and the Petitioner’s Supplemental Pleading (Doc. No. 11). For the reasons set forth herein, the
Motion To Vacate (Doc. No. 1) is DENIED, and this action is DISMISSED.
II. Procedural and Factual Background
In the underlying criminal case, the Petitioner pled guilty, before now-retired Judge William
J. Haynes, Jr., to unlawful possession of a firearm by a convicted felon. (Doc. Nos. 30, 32 in Case
No. 1:14cr00006). Through the Plea Agreement, the Petitioner acknowledged that he qualified as
an Armed Career Criminal, and that he was subject to a mandatory minimum sentence of 180
months of imprisonment. (Doc. No. 32, at 6, 9, in Case No. 1:14cr00006). The parties estimated the
Petitioner’s advisory sentencing guideline range to be 188 to 235 months, and ultimately agreed to
a sentence of 188 months. (Id., at 9-10). After the change-of-plea hearing, the case was randomly

reassigned to now-retired Judge Todd J. Campbell. (Doc. Nos. 33, 34 in Case No. 1:14cr00006).
At the subsequent sentencing hearing, Judge Campbell adopted the Presentence Investigation
Report, determined that the advisory sentencing guideline range was 188 to 235 months, and
imposed the 188-month agreed sentence. (Doc. Nos. 40, 41, 42 in Case No. 1:14cr00006). The
record reveals that no appeal was taken.
III. Analysis
A. The Section 2255 Remedy
28 U.S.C. Section 2255 provides federal prisoners with a statutory mechanism by which to
seek to have their sentence vacated, set aside or corrected:
(a) A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a).
In order to obtain relief under Section 2255, the petitioner must demonstrate constitutional
error that had a “‘substantial and injurious effect or influence on the guilty plea or the jury's
verdict.’” Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009)(quoting Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)).
The court should hold an evidentiary hearing in a Section 2255 proceeding where a factual
dispute arises, unless the petitioner’s allegations “‘cannot be accepted as true because they are
contradicted by the record, inherently incredible, or [are] conclusions rather than statements of
fact.’” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(quoting Arredondo v. United States,
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178 F.3d 778, 782 (6th Cir. 1999)). In addition, no hearing is required where “the record conclusively
shows that the petitioner is entitled to no relief.” Arredondo, 178 F.3d at 782 (quoting Blanton v.
United States, 94 F.3d 227, 235 (6th Cir. 1996)). See also Fifer v. United States, 660 F. App'x 358,
359 (6th Cir. Aug. 22, 2016).
Having reviewed the pleadings, briefs and records filed in the Petitioner's underlying
criminal case, as well as the pleadings, briefs and records filed in this case, the Court finds that it
need not hold an evidentiary hearing in this case to resolve the Petitioner’s claims. The record
conclusively establishes that the Petitioner is not entitled to relief on his claims for the reasons set
forth herein.
B. Petitioner’s Status as an Armed Career Criminal
In his Motion To Vacate, the Petitioner argues that after the Supreme Court’s decision in
Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), he no longer
qualifies to be sentenced as an Armed Career Criminal. In Johnson, the Supreme Court held that
the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
is unconstitutionally vague. The ACCA provides for a 15-year mandatory minimum sentence for
defendants convicted of certain firearms offenses who have three previous convictions for a “violent
felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). The statute goes on to define “violent
felony” as follows, with the residual clause set forth in italics:
(2) As used in this subsection–
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(B) the term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or
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destructive device that would be punishable by imprisonment for
such term if committed by an adult, 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 use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another. . .
(emphasis added).
The Court’s decision did not call into question the remainder of the Act’s definition of
“violent felony,” nor did the Court address the Act’s definition of “serious drug offense.” 135 S. Ct.
at 2563. In Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the
Supreme Court held that the Johnson decision announced a substantive rule that applies retroactively
on collateral review.
The Petitioner’s criminal history, as outlined in the Presentence Investigation Report,
includes 22 prior Tennessee convictions for aggravated burglary, and 14 prior Tennessee convictions
for burglary. As the Petitioner points out, the Sixth Circuit has recently held that a conviction for
aggravated burglary under Tennessee law does not qualify as a “violent felony” under the ACCA.
United States v. Stitt, 860 F.3d 854 (6th Cir. 2017).
The Government argues that even if the Court ignores the Petitioner’s aggravated burglary
convictions, the Petitioner remains an Armed Career Criminal because his burglary convictions
satisfy the enumerated offense clause of the ACCA’s “violent felony” definition.
In order to determine whether a prior conviction satisfies the elements of an enumerated
offense, the court must compare the elements of the statute of conviction with the elements of the
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“generic” crime. See, e.g., Taylor v. United States, 495 U.S.575, 599-600, 110 S.Ct. 2143, 109
L.Ed.2d 607 (1990). A prior conviction qualifies as a predicate offense under the ACCA only if the
statute’s elements are the same as, or narrower than, those of the generic offense. Id. With respect
to the enumerated offense of burglary, the Supreme Court has held that the generic offense is defined
as an “unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent
to commit a crime.” Taylor, 495 U.S. at 598.
The Tennessee burglary statute, Tennessee Code Annotated Section 39-14-402, provides as
follows:
(a) A person commits burglary who, without the effective consent of the property
owner:
(1) 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;
(2) Remains concealed, with the intent to commit a felony, theft or
assault, in a building;
(3) Enters a building and commits or attempts to commit a felony,
theft or assault; or
(4) Enters any freight or passenger car, automobile, truck, trailer,
boat, airplane or other motor vehicle with intent to commit a felony,
theft or assault or commits or attempts to commit a felony, theft or
assault.
(b) As used in this section, “enter” means:
(1) Intrusion of any part of the body; or
(2) Intrusion of any object in physical contact with the body or any
object controlled by remote control, electronic or otherwise.
(c) Burglary under subdivision (a)(1), (2) or (3) is a Class D felony.

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(d) Burglary under subdivision (a)(4) is a Class E felony.
In a recent decision, the Sixth Circuit reaffirmed its prior holding that convictions under
subsections (a)(1) -(3) of the this statute qualify as “violent felonies” under the ACCA’s enumerated
offense clause:
In Priddy, we held that all Class D burglary convictions under Tennessee law—that
is, convictions under subsections (a)(1), (a)(2), or (a)(3) of the Tennessee burglary
statute—fit within the generic definition of burglary and are therefore violent
felonies for purposes of the ACCA. [United States v. Priddy, 808 F.3d 676, 684–85
(6th Cir. 2015)]. The judgments in Ferguson's burglary convictions indicate that he
was thrice convicted of the Class D variant of Tennessee burglary. Accordingly,
Priddy dictates that his three burglary convictions are violent felonies, and the
district court's finding that he is an armed career criminal was proper.
United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017). That holding, the court noted, was
not undermined by the decision in United States v. Stitt. Id., at 516.
As the Petitioner acknowledges in his latest filing (Doc. Nos. 11, 11-1) in this case, the
judgments for his state court burglary convictions indicate that they were all Class D felonies.
Therefore, the convictions qualify as “violent felonies” under the ACCA’s enumerated offense
clause, and the Petitioner’s status as an Armed Career Criminal remains unchanged. Accordingly,
the Petitioner’s Motion To Vacate is without merit.
IV. Conclusion
For the reasons set forth herein, the Court concludes that the Petitioner’s request for Section
2255 relief should be denied. Accordingly, this action is dismissed.
Should the Petitioner give timely notice of an appeal from this Memorandum Opinion, and
accompanying Order, such notice shall be treated as an application for a certificate of appealability,
28 U.S.C. § 2253(c), which will not issue because the Petitioner has failed to make a substantial

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showing of the denial of a constitutional right. Castro v. United States, 310 F.3d 900 (6th Cir. 2002).
An appropriate order will be entered.

_______________________________
WAVERLY D. CRENSHAW, JR.
Chief United States District Judge

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