Bohannon v. United States of America

Filing 36

ORDER GRANTING MOTION PURSUANT TO 28 U.S.C. § 2255. Signed by Judge James D. Todd on 6/30/17. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TIMOTHY WAYNE BOHANNON,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.

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Civ. No. 13-1255-JDT-egb
Crim. No. 05-10080-JDT

ORDER GRANTING MOTION PURSUANT TO 28 U.S.C. § 2255

Timothy Wayne Bohannon was convicted by a jury on September 24, 2007, on two
counts of possessing firearms after having been convicted of a felony, in violation of 18
U.S.C. § 922(g). (No. 05-10080, Crim. ECF Nos. 38 & 39.) At sentencing this Court
determined, based on his prior Tennessee state-court convictions for aggravated burglary,
that Bohannon qualified for an enhanced sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). See also U.S.S.G. § 4B1.4. He was sentenced to a 180-month
term of imprisonment and a three-year term of supervised release. (No. 05-10080, Crim.
ECF Nos. 46 & 47.) Bohannon filed an appeal, but it was later voluntarily dismissed. (Id.,
Crim. ECF No. 58, United States v. Bohannon, No. 08-5016 (6th Cir. Feb. 11, 2008).)
Bohannon filed a pro se motion pursuant to 28 U.S.C. § 2255 on September 9, 2013.
(ECF No. 1.) Relying on the decision in Descamps v. United States, 133 S. Ct. 2276 (2013),
he contended that his ACCA-enhanced sentence was unlawful.

Bohannon filed a

supplemental § 2255 motion on August 21, 2015, arguing that his sentence also was unlawful
under the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015).
(ECF No. 15.) On October 15, 2015, U.S. District Judge J. Daniel Breen denied Bohannon’s
Descamps claim as untimely and found that he was not entitled to relief under Johnson
because his prior aggravated burglaries were categorical violent felonies under the ACCA’s
enumerated offenses clause. (ECF No. 16.) Bohannon appealed, and the Sixth Circuit
granted a certificate of appealability on the Johnson claim. (ECF No. 20.) The Court of
Appeals subsequently granted the parties’ joint motion to vacate and remand based on the
decisions in Johnson and Mathis v. United States, 136 S. Ct. 2243 (2016), and the grant of
rehearing in United States v. Stitt, 637 F. App’x 927 (6th Cir. 2016), vacated and reh’g en
banc granted, 2016 WL 1658598 (6th Cir. Apr. 27, 2016). (ECF No. 22, Bohannon v.
United States, No. 15-6420 (6th Cir. Oct. 4, 2016).) The case was then reassigned to the
undersigned Judge. (ECF No. 23.)
Counsel was appointed for the Movant (ECF No. 24), and the Court held a status
conference on October 13, 2016. After discussion, the Court determined that whether
Bohannon’s Tennessee convictions for aggravated burglary could still be used to qualify him
as an armed career criminal would depend on the outcome of the rehearing in Stitt; therefore,
the case was held in abeyance. (ECF No. 26.) The Sixth Circuit has now issued its en banc
decision in Stitt, holding that a conviction under Tennessee’s aggravated burglary statute,
Tenn. Code Ann. § 39-14-403, is not a violent felony for purposes of the ACCA. United
States v. Stitt, — F.3d — , 2017 WL 2766326 (6th Cir. June 27, 2017).
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Bohannon has filed a motion asking that his § 2255 motion be granted immediately
and that an amended judgment for time served be entered in the criminal case. (ECF No. 34.)
The United States does not oppose that motion. (ECF No. 35.) Therefore, because
Bohannon no longer qualifies as an armed career criminal under the ACCA, he is entitled to
relief from the enhanced sentence that was imposed pursuant to that statute. The motion
under 28 U.S.C. § 2255 is GRANTED. The judgment in the criminal proceeding is hereby
SET ASIDE. The Clerk is directed to prepare an amended criminal judgment sentencing
Bohannon to time served and three years of supervised release.
The Clerk is also directed to prepare a judgment in this civil case.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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