Davis v. United States of America

Filing 15

ORDER DISMISSING § 2241 MOTION, DENYING MOTIONS FOR COUNSEL, AND TAKING § 2255 MOTION UNDER ADVISEMENT. Signed by Judge J. Daniel Breen on 8/9/17. Associated Cases: 1:13-cv-01225-JDB-egb, 1:16-cv-01071-JDB-egb(Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BRAD DAVIS,
Petitioner,
v.

Civ. No. 1:13-cv-01225-JDB-egb
Civ. No. 16-cv-01071-JDB-egb
Cr. No. 1:07-cr-10063-JDB-1

UNITED STATES OF AMERICA,
Respondent.
ORDER DISMISSING § 2241 MOTION,
DENYING MOTIONS FOR COUNSEL,
AND
TAKING § 2255 MOTION UNDER ADVISEMENT
Before the Court is the motion of Petitioner, Brad Davis, to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255, filed in civil case number 13-cv-1225 (“§ 2255 Petition”),
as well as Petitioner’s motions for appointment of counsel. (2255 Pet., Davis v. United States,
No. 13-cv-1225 (W.D. Tenn.) (“2255 Case”), ECF No. 1; First Mo. Counsel, 2255 Case, ECF
No. 8; Second Mo. Counsel, 2255 Case, ECF No. 12.) Also before the Court is the inmate’s
motion for sentencing relief under Johnson v. United States, 135 S. Ct. 2551 (2015), which was
filed as a petition under 28 U.S.C. § 2241 in civil case number 16-cv-1071 (“§ 2241 Petition”).
(2241 Pet., Davis v. United States, No. 16-cv-1071 (W.D. Tenn.) (“2241 Case”), ECF No. 1.)
The Court construes the § 2255 Petition as asserting a timely Johnson claim and
DISMISSES the § 2241 Petition.1 For the following reasons, the § 2255 Petition is TAKEN

1

Because Davis could have raised the Johnson issue in his pending § 2255 proceeding,
the claim was not properly brought by way of a § 2241 petition. See Brown v. Warden, No. 15CV-88-HRW, 2015 WL 6702451, at *4 (E.D. Ky. Nov. 3, 2015) (stating that generally, “a
habeas corpus petition under § 2241 is not a proper method to assert a Johnson claim”).
Dismissal of the § 2241 petition is therefore appropriate. See id. at *6 (dismissing § 2241
1

UNDER ADVISEMENT. The motions for counsel are DENIED as moot. The Court will allow
Respondent, United States of America, an opportunity to supplement the record.
PETITIONER’S CRIMINAL PROCEEDINGS
On May 14, 2007, Davis was indicted by a federal grand jury with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). (Indict., United States v. Davis, No.
1:07-cr-10063 (W.D. Tenn.) (“Cr. Case”), ECF No. 1.) The Court appointed the Federal Public
Defender’s Office to represent him, (Order, Cr. Case, ECF No. 8), and on April 30, 2009, he
entered a plea of guilty to the sole count of the indictment.

(Ch. Plea Order, Cr. Case, ECF No.

55.)
Based on three Tennessee convictions for evading arrest, an adult conviction for
aggravated assault, a juvenile conviction for aggravated robbery, and a juvenile conviction for
aggravated assault, Davis was determined to be an armed career criminal subject to a mandatory
minimum sentence of 15 years’ incarceration under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). (Presentence Report (“PSR”) at pgs. 7, 14, 19, 21, 33.) The Court imposed
a sentence of 212 months’ incarceration, five years of supervised release, and a $100 assessment.
(Judgment, Cr. Case, ECF No. 81.)

petition that asserted Johnson claim where § 2255 petition was still pending). Notably, and to its
credit, Respondent has not objected to the Court’s resolution of the Johnson issue, despite
Petitioner’s misstep. In fact, the government addressed the Johnson issue in its supplemental
response to the § 2255 Petition. (Suppl. Resp, 2255 Case, ECF No. 14 at 5-7.) Therefore, the
Court’s treatment of the § 2255 Petition as asserting a claim under Johnson does not prejudice
the government, and properly reflects the course of the § 2255 litigation. See Fed. R. Civ. P. 15
(b)(2) (“When an issue not raised by the pleadings is tried by the parties’ express or implied
consent, it must be treated in all respects as if raised in the pleadings.”); Owens v. Tally, 815 F.2d
79 (6th Cir. 1987) (per curiam) (table decision) (rejecting defendant’s argument that district court
improperly assisted pro se plaintiff by, among other things, sua sponte amending the complaint
to conform to the proofs).

2

The defendant timely appealed his sentence. See United States v. Davis, 483 F. App’x
998 (6th Cir. 2012.). He argued that “his juvenile convictions should [not] qualify as violent
felonies” under the ACCA and that the district court erred in finding that his three Class E felony
evading arrest convictions qualified him for sentencing as an armed career criminal. Id. at 999.
The Sixth Circuit affirmed the sentence, holding that the three evading arrest convictions
constituted violent felonies under the ACCA’s residual clause. Id. The court therefore found it
“unnecessary” to decide whether the juvenile convictions qualified as violent felonies. Id.
PETITIONER’S COLLATERAL REVIEW FILINGS
Petitioner filed his § 2255 Petition on July 31, 2013, asserting the following claims for
relief:
1. Claim 1: Petitioner’s sentence was improperly enhanced under the ACCA
based on the Supreme Court’s rulings in Descamps v. United States, 133
S. Ct. 2276 (2013), and Alleyne v. United States, 133 S. Ct. 2151 (2013).
2. Claim 2: Petitioner’s trial counsel rendered ineffective assistance by
failing to advise him that his sentence could be enhanced under the
ACCA.
(2255 Pet., 2255 Case, ECF No. 1 at 3, 11.) Petitioner asks that his sentence be vacated and that
he be resentenced “without the ACCA enhancement.” (Id. at 18.)
Respondent, United States of America, filed its response to the 2255 Petition on
December 17, 2013. (2255 Resp., 2255 Case, ECF No. 6.) Davis replied on February 19, 2014,
(2255 Reply, 2255 Case, ECF No. 7), and subsequently filed two motions for appointment of
counsel. (First Mo. Counsel, 2255 Case, ECF No. 8; Second Mo. Counsel, 2255 Case, ECF No.
12.)
On April 11, 2016, Petitioner filed his § 2241 Petition, which was docketed as the caseinitiating pleading in a separate civil suit. (2241 Pet., 2241 Case, ECF No. 1.) By his § 2241

3

Petition, the inmate requested that his sentence be reduced pursuant to the Supreme Court’s
decision in Johnson, 135 S. Ct. at 2551. (2241 Pet., 2241 Case, ECF No. 1 at 2.)
The Court subsequently ordered the government to file a supplemental response to
Davis’s 2255 Petition to address the then-recent Sixth Circuit decision in United States v.
Pawlak, 822 F.3d 902 (6th Cir. 2016). (Order, 2255 Case, ECF No. 13.) The supplemental
response was filed on July 11, 2016. (Suppl. Resp., 2255 Case, ECF No. 14.)
On August 10, 2016, the Court appointed counsel to assist Petitioner with his claim under
Johnson. (Order, 2241 Case, ECF No. 8).2 The probation officer subsequently submitted a letter
to the parties and the Court in which he opined that, even after Johnson, Petitioner still qualifies
for an enhanced sentence under the ACCA based on three of his prior convictions. Appointed
counsel filed an objection to the letter, disagreeing with the officer’s opinion and arguing that
Petitioner’s juvenile offense of aggravated assault is not clearly a conviction for the intentional,
rather than reckless, variant of that crime. (Pet. Resp., 2241 Case, ECF No. 9 at 3-4.) The Court
ordered the government to reply to counsel’s argument (Order, 2241 Case, ECF No. 14), which it
did on June 26, 2017 (Reply, 2241 Case, ECF No. 15).
DISCUSSION
In his claim under Johnson, Petitioner argues that his Class E felony evading arrest
convictions no longer qualify as predicate convictions for purposes of enhancing his sentence
under the ACCA. (Pet. Resp., 2241 Case, ECF No. 9 at 3-4.) He contends that, without those
convictions, he is left with an insufficient number of qualifying convictions for enhancement, as
his juvenile conviction for aggravated assault is not a violent felony under the ACCA. (Id.)
Respondent does not dispute that the evading arrest offenses do not qualify as violent felonies

2

The motions for appointment of counsel are therefore DENIED as moot.
4

after Johnson. (Reply, 2241 Case, ECF No. 15 at 4-5; Supp. Resp., 2255 Case, ECF No. 14 at 47.) It insists, however, that Petitioner has the necessary three offenses for ACCA enhancement,
which include his juvenile aggravated assault conviction. (Reply, 2241 Case, ECF No. 15 at 614; Supp. Resp., 2255 Case, ECF No. 14 at 4-7.)
The Court concludes that the state records pertaining to Petitioner’s juvenile conviction
for aggravated assault do not establish that the conviction qualifies as a predicate offense under
the ACCA. The Court will allow Respondent an opportunity to expand the record. Because the
relief sought in Claims 1 and 2 is the same as that sought by the Johnson claim (i.e., resentencing
without enhancement under the ACCA), the Court does not address those claims at this time. 3
Legal Standards
A. § 2255 Standard of Review
Davis seeks habeas relief in this case pursuant to 28 U.S.C. § 2255(a). The statute reads
as follows:
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).
A prisoner seeking to vacate his sentence under § 2255 “must allege either (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted). An allegation that

3

If the Court grants relief under Johnson after Respondent is given an opportunity to
expand the record, Claims 1 and 2 will be moot.
5

the defendant’s sentence was improperly enhanced under the ACCA states a claim under § 2255.
Jones v. Castillo, 489 F. App’x 864, 866 (6th Cir. 2012).
B. The Residual Clause and Johnson
Generally, a person convicted of being a felon in possession of a firearm is subject to a
sentence of zero to ten years in prison. 18 U.S.C. § 924(a)(2). Under the ACCA, however, a
person who is convicted of being a felon in possession of a firearm and who has “three previous
convictions . . . for a violent felony or a serious drug offense . . . committed on occasions
different from one another . . . shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. §
924(e)(1).
“[V]iolent felony” is defined as
“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[.]”
18 U.S.C. § 924(e)(2)(B). Subsection (i) is known as the “use-of-force” clause. United States v.
Priddy, 808 F.3d 676, 686 (6th Cir. 2015), abrogated on other grounds, United States v. Stitt,
860 F.3d. 854 (6th Cir. 2017). The first part of subsection (ii) is the “enumerated-offense
clause,” while the phrase “otherwise involves conduct that presents a serious potential risk of
physical injury to another” is known as the “residual clause.” Johnson, 135 S. Ct. at 2556.

6

In Johnson, the Supreme Court held that the residual clause is unconstitutionally void for
vagueness. Id. at 2557. Therefore, an enhanced sentence under the residual clause violates due
process as guaranteed by the Fifth Amendment. Id.
C. Use-of-Force and Enumerated Offenses
The Sixth Circuit has made clear that Johnson only invalidated the ACCA’s residual
clause. See Priddy, 808 F.3d at 683. A defendant, therefore, “can still receive an ACCAenhanced sentence based on the statute’s use-of-force clause or enumerated-offense clause.” Id.
For purposes of the use-of-force clause, “‘[p]hysical force’” means violent force—that is, force
capable of causing physical pain or injury to another person.” Johnson v. United States, 559
U.S. 133, 140 (2010).
A court is to employ a multi-step analysis for determining whether the defendant’s prior
conviction qualifies as a violent felony under either of those clauses. See Descamps v. United
States, 133 S. Ct. 2276, 2283 (2013). The court must first apply a “‘categorical’ approach, by
which it “‘look[s] only to the statutory definitions’—i.e., the elements—of a defendant’s prior
offense[], and not ‘to the particular facts underlying those convictions.’” Id. (quoting Taylor v.
United States, 495 U.S. 575, 600 (1990)). If the court finds that the statute is “indivisible”—
meaning, it describes a single crime—it must then determine whether the statute matches the
generic version of an enumerated offense or necessarily involves the use, attempted use, or
threatened use of physical force. Mathis v. United States, 136 S. Ct. 2243, 2248, 2253 (2016).
If, on the other hand, the court finds that the statute is “divisible,” that is, it defines more
than one crime, and if the “statute ‘could be violated in a way that would constitute a crime of
violence and in a way that would not,’” the court is to apply the “modified categorical approach.”
United States v. Gooch, 850 F.3d 285, 291 (6th Cir. 2017) (quoting United States v. Rafidi, 829

7

F.3d 437, 444 (6th Cir. 2016)). Under that approach, the court may consider a narrow set of
documents from the defendant’s criminal case “‘to determine whether the conviction necessarily
depended on the commission of a’” violent felony. Rafidi, 829 F.3d at 444 (quoting United
States v. Rede-Mendez, 680 F.3d 552, 556 (6th Cir. 2012)). The so-called “Shepard” documents
may include “the indictment, jury instructions, . . . plea agreement[,] and colloquy.” Mathis, 136
S. Ct. at 2249 (citing Shepard v. United States, 544 U.S. 13, 26 (2005))
There may be cases where the Shepard documents do not identify the offense of
conviction “with certainty.” United States v. McMurray, 653 F.3d 367, 381 (6th Cir. 2011). See
also Johnson, 559 U.S. at 145 (“[A]bsence of [Shepard] records will often frustrate application
of the modified categorical approach.”). If, in such a circumstance, the court cannot rule out the
possibility that the defendant was convicted of a variant of the crime that does not constitute a
violent felony, the conviction will not qualify as a predicate for sentence enhancement. See, e.g.,
McMurray, 653 F.3d at 378, 381 (finding that where Shepard documents did not narrow the
offense of conviction, possibility that defendant was convicted of reckless form of aggravated
assault was not excluded); Mitchell v. United States, -- F. Supp. 3d --, No. 99-cr-20272, 2017
WL 2861805, at *16 (W.D. Tenn. July 5, 2017) (stating that where “the Shepard documents
[were] unclear, it [was] possible that [the petitioner’s] conviction” for Tennessee aggravated
assault “could have been based on reckless conduct”).
D. Convictions Based on Guilty Pleas in Juvenile Delinquency Proceedings
In those instances where the defendant’s prior conviction resulted from a guilty plea, the
modified categorical approach asks “‘whether the [Shepard] documents establish that the
defendant ‘necessarily admitted’ the elements of a predicate offense through his plea.’” United
States v. Medina-Almaguer, 559 F.3d 420, 423 (6th Cir. 2009)) (quoting Shephard, 544 U.S. at

8

16). In other words, convictions resulting from guilty pleas “can be predicate offenses for
purposes of the ACCA if ‘the Shepard documents demonstrate with certainty that [the defendant]
pleaded guilty to a narrowed charge that would qualify as a violent felony.’” United States v.
Joy, 658 F. App’x 233, 236 (6th Cir. 2016) (quoting McMurray, 653 F.3d at 381) (internal
quotation marks omitted).
Shepard documents from a juvenile proceeding that involved a guilty plea may include
the “the charging documents, and the juvenile judge’s order of adjudication.” United States v.
White, 455 F. App’x 647, 652 (6th Cir. 2012). A Tennessee juvenile court “petition” is a
charging document. See Tenn. Code Ann. § 37-1-108 (establishing that a juvenile proceeding
“may be commenced . . . by the filing of a petition”). A court may therefore look to such a
petition, and the factual recitation therein, to determine the offense of conviction. White, 455 F.
App’x at 653-54; United States v. Wells, 473 F.3d 640, 649 (6th Cir. 2007) (suggesting that the
“factual recitation” contained in a juvenile court petition “could well . . . justif[y] treating [a]
juvenile adjudication as a predicate offense for armed career criminal purposes.”).
Davis’s Johnson Claim
As noted, Petitioner was sentenced as an armed career criminal pursuant to the ACCA.
His qualifying offenses were three Class E felony evading arrest convictions, deemed by the
Sixth Circuit to be violent felonies under the residual clause. Davis, 483 F. App’x at 999. Those
convictions no longer qualify as violent felonies post-Johnson. See United States v. Holder, 612
F. App’x 838, 839 (6th Cir. 2015) (“It is plain that Holder’s evading arrest conviction is no
longer a violent felony under the ACCA” in light of Johnson.). Thus, the question before the
Court is whether Davis’s remaining convictions—an adult conviction for Class C aggravated
assault and judgments of juvenile delinquency for aggravated robbery and aggravated assault—

9

qualify as crimes of violence under the ACCA.

If they do, Petitioner is not entitled to

resentencing.
Davis does not dispute that his adult conviction for Class C felony aggravated assault and
his juvenile conviction for aggravated robbery are violent felonies under the ACCA. (Pet. Resp.,
2241 Case, ECF No. 9 at 3-4.)

See Tenn. Code Ann. § 39-12-102 (eff. June 12, 1995)

(intentional aggravated assault is a Class C felony); United States v. Southers, No. 15-6395, -F.3d --, 2017 WL 1857272, at *2 (6th Cir. May 8, 2017) (stating that Mitchell remains
controlling law in the Sixth Circuit); Braden v. United States, 817 F. 3d 926, 933 (6th Cir. 2016)
(confirming that Tennessee intentional aggravated assault is a violent felony); United States v.
Mitchell, 743 F.3d 1054, 1060 (6th Cir. 2014) (finding that robbery under Tennessee law is
categorically a violent felony under the ACCA’s use-of-force clause).
Instead, the inmate challenges the classification of his juvenile conviction for aggravated
assault as a predicate conviction under the ACCA’s use-of-force clause.4 Relying on McMurray,
653 F.3d at 375, he argues that his juvenile aggravated assault conviction does not qualify as a
violent felony because it is not clear from the state court record whether he pleaded guilty to
reckless aggravated assault or intentional aggravated assault. (Pet. Resp., 2241 Case, ECF No. 9
at 3-4.) In McMurray, the Sixth Circuit “conclude[d] that the ‘use of physical force’ clause of
the ACCA requires more than reckless conduct.” 653 F.3d at 375 (internal citation omitted).
The court therefore held that Tennessee reckless aggravated assault involving “serious bodily
injury” is not categorically a violent felony under the use-of-force clause. Id. at 375-76.
Citing Braden, 817 F.3d at 933, the government counters that the state court record
shows that Davis was convicted of intentional aggravated assault with a deadly weapon, which is

4

“[A]ggravated assault is not an enumerated crime” under the ACCA. McMurray, 653
F.3d at 373.
10

categorically a violent felony under the ACCA’s use-of-force clause. (Supp. Resp., 2255 Case,
ECF No. 14 at 6). Respondent also argues, in the alternative, that even if Petitioner was
convicted of reckless aggravated assault, reckless conduct may qualify as a crime of violence
under the Supreme Court’s recent decision in Voisine v. United States, 136 S. Ct. 2272 (2016).
(Reply, 2241 Case, ECF No. 6-10.)
The Tennessee aggravated assault statute in effect at the time Petitioner was charged and
convicted provided, in pertinent part:
(a)

A person commits aggravated assault who:
(1) Intentionally or knowingly commits an assault as defined in
Section 39-13-101 and:
(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon; or
(2) Recklessly commits an assault as defined in Section 39-13101(a)(1), and:
(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon.

***
(d)

Aggravated assault under subsection (a)(1) . . . is a Class C felony.
Aggravated assault under subsection (a)(2) is a Class D felony.

Tenn. Code Ann. § 39-12-102 (eff. June 12, 1995).
Section 39-13-101 provided, in relevant part:
(a)

A person commits assault who:
(1) Intentionally, knowingly or recklessly causes bodily injury to
another;
(2) Intentionally or knowingly causes another to reasonably fear
imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with
another and a reasonable person would regard the contact as
extremely offensive.

Tenn. Code Ann. § 39-12-101 (eff. 1990).
Subsection 102(a) of the Tennessee aggravated assault statute “is divisible into two
crimes: aggravated assault in violation of (a)(1),” which is intentional assault with aggravating
11

factors, and “aggravated assault in violation of (a)(2),” which is reckless assault with aggravating
factors. United States v. Perez-Silvan, 861 F.3d 935, 841 (9th Cir. 2017) (applying modified
categorical approach to defendant’s prior conviction for aggravated assault under Tennessee
statute). As noted, the Sixth Circuit has held that the reckless form of aggravated assault does
not qualify as a violent felony under the ACCA’s use-of-force clause, see McMurray, 653 F.3d at
375, whereas the intentional form does, see Braden, 817 F.3d at 933. The Court must therefore
apply the modified categorical approach to determine the crime to which Davis pleaded guilty.
See id. (“[T]he Tennessee aggravated assault statute . . . [Tennessee Code Annotated 39-13102][,] is a divisible statute, and therefore, the modified categorical approach is applicable.”).
The qualifying Shepard documents from Davis’s juvenile case submitted by the
government at sentencing are the juvenile petition and the judgment of delinquency, which also
contains Davis’s guilty plea.
The juvenile court petition dated October 26, 1995, states that Davis:
. . . stands accused of AGGRAVATED ASSAULT when on September 30, 1995,
he did hit one Brian Moore in the face around his mouth with a gun he held in his
hand. Said incident did occur on North Lafayette/West Cherry Street,
Brownsville, Haywood County, Tennessee.”
(Juv. Pet., 2241 Case, ECF No. 9-1 at 1.)
The one-page judgment is dated November 13, 1995, and is signed by the judge of the
juvenile court. (Id. at 2.) Davis is sentenced to a “[d]eterminate commitment until age 19.” (Id.)
The space below the judge’s signature is titled “Plea,” and reads “I, Brad Davis plead guilty to
the charge of AGGRAVATED ASSAULT.” (Id.) The plea is signed by Davis. Below the
defendant’s signature is a copy of a document titled “Juvenile Petition” with docket page and
book numbers, showing that Davis was charged with “AGGRAVATED ASSAULT” and that a

12

court date was set for November 13, 1995. Below that appears the “Waiver of Attorney,” which
was signed by the judge, Davis’s mother, and Davis. (Id.)5
The Shepard materials do not provide sufficient information for the Court to determine
“with certainty,” McMurray, 653 F.3d at 381, the variant of aggravated assault which was the
basis for Petitioner’s conviction. If the juvenile petition had “track[ed] the language” of a
statutory subsection, it might have shed light on the mens rea of the underlying assault or on the
particular variant of aggravated assault charged. White, 455 F. App’x at 653-54 (stating that
where, although juvenile petition contained factual allegations of both use of a gun and bodily
injury—i.e., defendant “hit [the victim] in the mouth with [a] gun and caused an injury requiring
stitches”—conviction was for intentional aggravated assault with a deadly weapon; petition
“track[ed] the [statutory] language” for intentional aggravated assault with a deadly weapon and
“clearly identifie[d] the gun as the reason for seeking an aggravated assault charge”). But the
petition here does not use statutory language, or even cite to the statute. In addition, because the
petition charges juvenile delinquency, it does not narrow the charge to intentional aggravated
assault by specifying whether the crime is a Class C or Class D felony. See Tenn. Code Ann. §
39-12-102 (eff. June 12, 1995) (stating that intentional aggravated assault is a Class C felony and
reckless aggravated assault is a Class D felony); United States v. Cooper, 739 F.3d 873, 881 (6th
Cir. 2014) (noting that although indictment mentioned all forms of mens rea, it narrowed the
conviction to intentional aggravated assault by charging “Class C felony”).

5

On direct appeal from his federal conviction, Davis argued, in part, that his juvenile
convictions do not qualify as predicate offenses under the ACCA because the juvenile court
documents do not show that he knowingly waived his right to an attorney. (See Appellant Br.,
United States v. Davis, Case No. 10-5438, ECF No. 30 at 2.) Because the Sixth Circuit held that
Petitioner’s evading arrest convictions were violent felonies, it declined to reach the waiver
issue. See Davis, 483 F. App’x at 999.
13

Despite the paucity of information in the Shepard documents, Respondent nevertheless
urges the Court to conclude that Petitioner pleaded guilty to the intentional version of aggravated
assault based on what the juvenile petition does not say: that the victim suffered bodily injury.
The government points out that reckless assault under § 39-13-101(a)(1), which is the basis for
aggravated reckless assault under § 39-13-102(a)(2), requires that the perpetrator have caused
“bodily injury.” (Reply, 2241 Case, ECF No. 15 at 13.) Respondent posits that, because Davis’s
plea was to a charge that does not mention bodily injury, his conviction was not for reckless
assault, and was thus for intentional or knowing aggravated assault. (Id.)
The government’s argument has some logical appeal, but must be rejected. The premise
advanced—that Davis necessarily admitted to intentional or knowing aggravated assault—rests
upon a negative inference drawn from a thin Shepard record. The Sixth Circuit made clear in
McMurray that, in the context of a guilty plea, the defendant must have admitted to a particular
fact or the fact must have been “‘inherent in the fact of [the] . . . conviction.” 653 F.3d at 377.
Here, Petitioner necessarily admitted to hitting the victim in the mouth with a gun and to
committing an aggravated assault.

The government gets to heightened mens rea only by

inferring an absence of bodily injury from the juvenile petition’s failure to mention it, and not by
pointing to any affirmative fact to which Davis admitted by his guilty plea or to something
inherent in the conviction for “aggravated assault.” See e.g., Davis v. United States, No. 3:01CR-38-RLJ-HBG-1, 2017 WL 1380558, at *4 (E.D. Tenn. Apr. 17, 2017) (concluding that
where Shepard materials showed only that the petitioner was “charg[ed] . . . with ‘shooting’
someone with a ‘deadly weapon’ and [was] convict[ed] . . . of ‘[Tennessee] aggravated assault,’”
“the possibility that . . . [the] conviction[] involved reckless—as opposed to intentional or
knowing—conduct” was not “foreclose[d].”); see also United States v. Ossana, 638 F.3d 895,

14

903-04 (8th Cir. 2011) (concluding that where the absence of injury to the victim “would [have]
eliminate[d] the possibility of a conviction based upon mere recklessness,” court would not draw
an inference of lack of injury from the mere fact that the sparse Shepard materials did not
mention injury, and remanding for expansion of the Shepard record).
It is possible that an expanded Shepard record here could warrant the inference that
Petitioner did not plead guilty to causing bodily injury and that he therefore necessarily pleaded
guilty to the intentional variant of aggravated assault. See, e.g., Ossana, 679 F.3d at 736
(affirming, on appeal after remand, district court’s determination that conviction was for
intentional assault where additional Shepard material warranted negative inference that victim
was not injured). Or maybe additional Shepard material would shed light on the exact nature of
Petitioner’s conviction in a direct way, without reliance on a negative inference. On the record
the government has produced to date, however, the Court cannot determine with certainty the
nature of Petitioner’s aggravated assault conviction. See e.g., Mitchell, 2017 WL 2861805, at
*16 (“[B]ecause the Shepard documents are unclear, it is possible that Mitchell’s [Tennessee
aggravated assault] conviction could have been based on reckless conduct.”).
Respondent insists, in the alternative, that even if Petitioner was convicted of reckless
aggravated assault, reckless conduct may qualify as a crime of violence under the Supreme
Court’s recent decision in Voisine, 136 S. Ct. at 2272. It asks the Court to abandon application
of McMurray, 653 F.3d at 375, in light of Voisine. (Reply, 2241 Case, ECF No. 15 at 4-10.)
The issue in Voisine was whether a misdemeanor assault conviction based on reckless
conduct qualifies as a “misdemeanor crime of violence,” for purposes of 18 U.S.C. § 922(g)(9).
136 S. Ct. at 2277-78. Section 922(g)(9) prohibits possession of a firearm by a person convicted
of a “misdemeanor crime of violence.” 18 U.S.C. § 922(g)(9). In language identical, in part, to

15

that found in the use-of-force clause of 18 U.S.C. § 924(e)(2)(B)(i), the statute defines a
misdemeanor crime of violence as a misdemeanor “involv[ing] ‘the use . . . of physical force.’”
Voisine, 136 S. Ct. at 2276 (quoting 18 U.S.C. § 921(a)(33)(A)) (alterations in original).
“[R]elying on a combination of the statutory text, legislative history, and practical concerns,” the
Court in Voisine held that “‘misdemeanor assault convictions for reckless (as contrasted to
knowing or intentional) conduct trigger the statutory firearms ban’ found in § 922(g)(9).” Davis,
2017 WL 1380558, at *5 (quoting Voisine, 136 S. Ct. at 2276, 2278-82).
The government argues that Voisine’s ruling as to the use-of-force clause in §
921(a)(33)(A) effectively abrogates McMurray’s ruling that the use-of-force clause under §
924(e)(2)(B) requires more than reckless conduct. The Court rejects the argument for the
reasons set forth in the district court’s thorough analysis in Davis, 2017 WL 1380558, at *5-10.
The Court joins the growing list of “[c]ourts in this circuit . . . [that] have rejected [the]
argument.” Mitchell, 2017 WL 2861805, at *16 (citing United States v. Buford, No. 04-20481,
2017

U.S.

Dist.

LEXIS

69068,

at

*24

(W.D.

Tenn.

Apr.

26,

2017)); Davis,

2017 WL 1380558, at *2-3, *9; United States v. Wehunt, 230 F.Supp.3d 838, 846 (E.D. Tenn.
2017)).
CONCLUSION
Petitioner’s Class E felony evading arrest convictions no longer qualify as predicate
convictions under the ACCA and Respondent has not shown that a total of three other prior
convictions qualify as crimes of violence. The government is allowed fourteen days to submit
additional Shepard material pertaining to Petitioner’s juvenile aggravated assault conviction, if it
can and if it so desires. Petitioner may file a response within fourteen days of Respondent’s

16

submission. The § 2255 Petition is taken under advisement pending further submissions by the
parties.
IT IS SO ORDERED this 9th day of August 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE 

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