Crowell v. United States of America
Filing
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MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 1/25/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEQUAN E. CROWELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil No. 3:16-cv-00121
Judge Trauger
MEMORANDUM
I. Introduction
Pending before the court are the Petitioner’s pro se Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence (Docket No. 1); a Notice Of Intent To Rely On Pro Se
Motion (Docket No. 14), filed by counsel for the Petitioner; and the Government’s Response
(Docket No. 20). For the reasons set forth herein, the Petitioner’s Motion To Vacate (Docket No.
1) is DENIED, and this action is DISMISSED.
II. Procedural Background
The Petitioner pled guilty on July 11, 2011, before now-retired Judge William J. Haynes,
Jr., to unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924. (Docket Nos. 23, 30 in Case No. 3:11cr00001). Through the Plea Agreement,
the Petitioner acknowledged that he qualified for a 15-year mandatory minimum statutory sentence
as an Armed Career Criminal, and that he had the following prior Tennessee convictions: two
counts of aggravated assault in 2008; aggravated assault in 2004; and evading arrest in a motor
vehicle in 2005. (Docket No. 30, at 7, 11, in Case No. 3:11cr00001). The parties estimated the
Petitioner’s guideline range to be 188 to 235 months of imprisonment, and agreed to a sentence of
180 months. (Id., at 13).
At the subsequent sentencing hearing, on September 19, 2011, Judge Haynes imposed the
180-month agreed sentence. (Docket Nos. 29, 31, 32 in Case No. 3:11cr00001). The record
reveals that no appeal was taken.
III. Analysis
A. 28 U.S.C. § 2255
The Petitioner has brought this action pursuant to 28 U.S.C. § 2255. Section 2255 provides
a statutory mechanism for challenging the imposition of a federal sentence:
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, a petitioner “‘must demonstrate
the existence of an error of constitutional magnitude which had a substantial and injurious effect or
influence on the guilty plea or the jury's verdict.’” Humphress v. United States, 398 F.3d 855, 858
(6th Cir. 2005)(quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).
If a factual dispute arises in a § 2255 proceeding, the court is to hold an evidentiary
hearing to resolve the dispute. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). An
evidentiary hearing is not required, however, if the record conclusively shows that the petitioner is
not entitled to relief. 28 U.S.C. § 2255(b); Ray, 721 F.3d at 761; Arredondo v. United States, 178
F.3d 778, 782 (6th Cir. 1999). A hearing is also unnecessary “if the petitioner’s allegations ‘cannot
be accepted as true because they are contradicted by the record, inherently incredible, or
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conclusions rather than statements of fact.’” Id.
Having reviewed the pleadings, briefs, and records filed in the Petitioner's underlying
criminal case, as well as the filings in this case, the court finds it unnecessary to hold an
evidentiary hearing because the records conclusively establish that the Petitioner is not entitled to
relief on the issues raised.
B. Johnson v. United States
The Petitioner requests that the court apply the decision in Johnson v. United States, ___
U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015) to reduce his sentence. 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 imposes 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
“residual clause” is part of the definition of “violent felony,” as set forth below 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
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 Johnson Court specifically explained that its decision did not call into
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question the remainder of the Act’s definition of “violent felony.” 135 S. Ct. at 2563. In Welch v.
United States, 136 S.Ct. 1257 (2016), the Supreme Court held that the Johnson decision
announced a substantive rule that applies retroactively on collateral review.
According to the Petitioner, in the absence of the residual clause, his prior conviction for
evading arrest in a motor vehicle no longer qualifies as a “violent felony” under the ACCA. In its
Response, the Government agrees, but argues that the Petitioner still meets the requirements of the
ACCA based on his three prior convictions for aggravated assault. The offense of aggravated
assault, the Government contends, constitutes a “violent felony” under the definition’s “use-offorce” clause.
As set forth above, the “use-of-force” clause includes offenses that have “as an element the
use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. §
924(e)(2)(B)(i). The Supreme Court has defined the term “physical force,” as used in this clause,
as “violent force – that is, force capable of causing physical pain or injury to another person.”
[Curtis] Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271, 176 L. Ed. 2d 1
(2010). See also United States v. Southers, 866 F.3d 364, 366 (6th Cir. 2017).
In determining whether a prior conviction satisfies this definition, courts are to use the
“categorical approach,” which focuses on the statute defining the prior offense rather than the facts
underlying the prior conviction. See, e.g., Taylor v. United States, 495 U.S.575, 600, 110 S.Ct.
2143, 109 L.Ed.2d 607 (1990); Southers, 866 F.3d at 366. If a statute “sets out a single (or
‘indivisible’) set of elements to define a single crime,” then the court simply compares those
elements to the ACCA definition to see if they match. Mathis v. United States, ___ U.S. ___, 136
S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). If the elements of the statute include a wider range of
conduct than the ACCA definition, the prior conviction cannot count as an ACCA predicate. 136
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S.Ct. at 2248-49.
If a statute is “divisible,” in that it lists elements in the alternative to define multiple
crimes, however, courts are to use the “modified categorical approach.” Id., at 2249. Under that
approach, “a sentencing court looks to a limited class of documents (for example, the indictment,
jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct.
1254, 161 L.Ed.2d 205 (2005)). Once the crime of conviction is determined, the court can then
make the comparison of elements required by the categorical approach. Id.
At the time of the Petitioner’s offenses in 2004 and 2008, Tennessee Code Annotated
Section 39-13-102(a) defined the crime of aggravated assault as including (1) intentionally or
knowingly committing an assault and either causing serious bodily injury to another, or using or
displaying a deadly weapon; or (2) recklessly committing an assault and either causing serious
bodily injury to another, or using or displaying a deadly weapon. An intentional aggravated assault
was designated as a Class C felony, and a reckless assault was designated as a Class D felony.
Tenn. Code Ann. § 39-13-102(d) (currently § 39-13-102(e)(1)(A)); United States v. Cooper, 739
F.3d 873, 878-79 (6th Cir. 2014).
In United States v. Cooper, 739 F.3d at 880, the Sixth Circuit considered whether
aggravated assault under Tennessee law constitutes a “crime of violence” for purposes of the
Career Offender sentencing guideline. The court analyzed the applicable statute, Tenn. Code Ann.
§ 39-13-102, and determined that because the statute encompassed both intentional and reckless
conduct, it was necessary to apply the modified categorical approach to determine whether the
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crime satisfied the definition.1 739 F.3d at 877-880.
Turning to the Shepherd documents, the court noted that the indictment, plea agreement, and
judgment revealed that the defendant pled to a Class C felony for aggravated assault involving use
or display of a deadly weapon. Id., at 880-82. Explaining that the statute classified intentional
aggravated assault as a Class C felony and reckless aggravated assault as a Class D felony, the
court concluded that the defendant’s conviction was for intentionally assaulting someone using or
displaying a deadly weapon. Id. The court then concluded that, because the version of the
aggravated assault statute to which the defendant pled guilty matched the generic definition of
aggravated assault listed in the enumerated-offense clause, the defendant’s conviction constituted a
crime of violence. Id., at 882-83. Having reached that conclusion, the court found it unnecessary to
analyze whether the defendant’s conviction satisfied the use-of-force clause or the residual clause.
Id., at 882 n. 5.
In subsequent opinions, the Sixth Circuit has applied Cooper’s modified categorical
approach to reach the conclusion that intentional aggravated assault by use of a deadly weapon,
under Tenn. Code Ann. § 39-13-102, also satisfies the definition of “violent felony” under the
ACCA’s use-of-force clause. See United States v. Braden, 817 F.3d 926, 931-33 (6th Cir. 2016);
United States v. Joy, 658 F. App’x 233, 236 (6th Cir. July 29, 2016); Campbell v. United States,
2017 WL 404379 (6th Cir. Mar. 22, 2017).
The Government has filed the state court documents for the Petitioner’s aggravated assault
convictions. The Indictment and Judgment for the 2004 aggravated assault conviction indicate that
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In Cooper, the government conceded that the crime did not categorically qualify as a
crime of violence under either the use-of-force clause or the residual clause, and the court
concluded that the crime did not categorically satisfy the enumerated-offense clause. Id., at 879.
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the Petitioner was charged with attempted intentional and premeditated first degree murder, but
pled guilty to the reduced charge of aggravated assault, and that the conviction is a Class C felony.
(Docket No. 20-1, at 11). Thus, these documents indicate that the Petitioner’s conviction was
based on the intentional use or display of a deadly weapon, or the intentional causing of serious
bodily injury to another.2 In 2008, the Petitioner pled guilty to aggravated assault involving Tesha
Akins by the “use or display of a deadly weapon,” and to aggravated assault involving Quintin
Harleston by the “use or display of a deadly weapon.” (Docket No. 20-2, at 3, 5, 9-11). The
Judgments for these convictions indicate that they were both Class C felonies. (Id., at 10-11).
Based on the Sixth Circuit case law discussed above, therefore, all three of the Petitioner’s
aggravated assault convictions satisfy the definition of “violent felony” under the ACCA’s use-offorce clause. Thus, the Petitioner remains an Armed Career Criminal without regard to the residual
clause invalidated by Johnson.
C. Ineffective Assistance of Counsel/Involuntary Guilty Plea
The Petitioner also argues that his guilty plea in the underlying criminal case was not
entered knowingly and voluntarily because trial counsel, the prosecutor, and the Government
erroneously advised him that his prior conviction for evading arrest in a motor vehicle qualified as
a predicate offense under the ACCA.
A guilty plea complies with the requirements of due process if it is entered knowingly and
voluntarily under the totality of the circumstances. Brady v. United States, 397 U.S. 742, 748-49,
90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). See also United States v. Ruiz, 536 U.S. 622, 630, 122 S.
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Nothing in these documents suggest that the conviction implicated the other Class C
variants set forth in the statute, which involve either a victim protected by a court order or the
failure to protect a child from aggravated assault or abuse. Tenn. Code Ann. § 39-13-102(b), (c).
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Ct. 2450, 153 L. Ed. 2d 586 (2002). If a defendant understands the charges against him and the
consequences of entering a guilty plea, and voluntarily chooses to plead guilty without being
coerced, the guilty plea will be upheld. Brady, 397 U.S. 748-54; Alvarez v. Straub, 21 Fed. Appx.
281, at **2, 2001 WL 1298993 (6th Cir. Aug. 9, 2001).
The Sixth Circuit has also made clear that changes in the law made after the entry of a
guilty plea do not render an otherwise valid plea involuntary or unknowing. See, e.g., United
States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005); United States v. Ryerson, 502 F. App’x 495,
498 (6th Cir. 2012); United States v. Whitsell, 481 F. App’x 241, 243 (6th Cir. 2012). See also
Brady v. United States, 397 U.S. at 757 (“. . . a voluntary plea of guilty intelligently made in the
light of the then applicable law does not become vulnerable because later judicial decisions
indicate that the plea rested on a faulty premise.”)
At the time the Petitioner entered his guilty plea, on July 11, 2011, the Johnson decision
had not been issued, and the prevailing case law indicated that felony evading arrest qualified as
an ACCA predicate offense under the residual clause. See, e.g., United States v. Doyle, 678 F.3d
429, 430, 2012 WL 1560394 (6th Cir. 2012) (Discussing prior case law holding that felony
evading arrest constitutes a “violent felony” under the ACCA’s residual clause). As explained
above, the subsequent invalidation of the residual clause in Johnson some four years later does not
render the Petitioner’s otherwise valid guilty plea involuntary or unknowing.
The Petitioner has also failed to establish that trial counsel provided ineffective
representation by failing to challenge the evading arrest conviction as an ACCA predicate. In
order to prevail on an ineffective assistance of counsel claim, the burden is on the petitioner to
show: (1) counsel's performance fell below an objective standard of reasonableness; and (2)
actual prejudice resulted from the deficient performance. Strickland v. Washington, 466 U.S. 668,
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104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011);
Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004). The court need not address both
requirements if the petitioner makes an insufficient showing on one. Strickland, 104 S.Ct. at 2069.
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial cannot be
relied upon as having produced a just result.” Strickland, 104 S.Ct. at 2052; Ludwig v. United
States, 162 F.3d 456, 458 (6th Cir. 1998). In analyzing trial counsel's performance, the court must
"indulge a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." Strickland, 104 S.Ct. at 2065.
In order to establish prejudice, the petitioner must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id., at 2068. A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Id., at 2052. The likelihood of a different result “must be substantial,
not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792, 178 L. Ed. 2d
624 (2011).
Trial counsel is not ineffective for failing to predict a change in the law unless that change
was clearly foreshadowed by existing decisions. See, e.g., Baker v. Voorhies, 392 F. App’x 393,
400 (6th Cir. 2010). As noted above, the Johnson decision was issued on June 26, 2015, almost
four years after the Petitioner’s sentencing hearing. The Petitioner has not shown that counsel was
ineffective for failing to predict, at that time, the change occasioned by the Johnson decision.
In any event, as explained herein, even in the absence of the evading arrest conviction, the
Petitioner still qualifies as an Armed Career Criminal based on his aggravated assault convictions.
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Consequently, he has not established that he was prejudiced by any failure of counsel to predict
Johnson. Accordingly, the Petitioner’s ineffective assistance of counsel claim is without merit.
IV. Conclusion
For the reasons set forth herein, the court concludes that the Petitioner’s request for Section
2255 relief is without merit. Accordingly, the Petitioner’s Motion To Vacate is denied and this
action is dismissed.
If the Petitioner gives timely notice of an appeal from the court’s Memorandum and Order,
such notice shall be treated as a 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 showing of the denial
of a constitutional right. Castro v. United States, 310 F.3d 900 (6th Cir. 2002).
It is so ORDERED.
ENTER this 25th day of January 2018.
_______________________________
ALETA A. TRAUGER
U.S. District Judge
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