Walton v. United States of America
Filing
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ORDER DENYING MOTION PURSUANT TO 28 U.S.C.§ 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 10/19/15. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
LARRY WALTON,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.
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Civ. No. 15-1203-JDT-egb
Crim. No. 05-10074-JDT
ORDER DENYING MOTION PURSUANT TO 28 U.S.C.§ 2255,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On August 19, 2015, Movant Larry Walton, Bureau of Prisons register number 20486-076,
an inmate at the Federal Correctional Institution – Medium in Yazoo City, Mississippi, filed a pro
se motion pursuant to 28 U.S.C. § 2255, accompanied by a legal memorandum. (ECF Nos. 1 & 1-1.)
The single issue raised in Walton’s § 2255 motion is whether his enhanced sentence, imposed
pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unlawful in light of
the Supreme Court’s recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015).
On October 17, 2005, a federal grand jury returned a one-count indictment against Walton,
charging him possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g). (United States v. Walton, No. 05-10074-JDT (W.D. Tenn.).) Walton entered a guilty plea
on February 21, 2006. (Id., Min. Entry, Crim. ECF No. 19.) There was no written plea agreement.
At a hearing on May 26, 2006, the Court found that Walton was subject to an increased sentence
under the ACCA and sentenced him to a 204-month term of imprisonment (id., Min. Entry, Crim.
ECF No. 29; id., Sentencing Hr’g Tr. at 3-4, 12-13, Crim. ECF No. 35). Judgment was entered the
same day. (Id., Crim. ECF No. 30.) The United States Court of Appeals for the Sixth Circuit
affirmed. United States v. Walton, No. 06-5745 (6th Cir. Apr. 13, 2007).
Pursuant to 28 U.S.C. § 2255(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.
“A prisoner seeking relief under 28 U.S.C. § 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).
After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears from
the motion, any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion.” Rule 4(b), Rules Governing § 2255
Proceedings (“§ 2255 Rules”). “If the motion is not dismissed, the judge must order the United
States attorney to file an answer, motion, or other response within a fixed time, or to take other
action the judge may order.” Id. The movant is entitled to reply to the Government’s response.
Rule 5(d), § 2255 Rules. Movant has the burden of proving that he is entitled to relief by a
preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
The ACCA provides as follows:
(e)(1) In the case of any person who violates section 922(g) of this title and has
three previous convictions by any court referred to in section 922(g)(1) of this title
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for a violent felony or a serious drug offense, or both, committed on occasions
different from one another, such person shall be fined under this title and imprisoned
not less than fifteen years, and, notwithstanding any other provision of law, the court
shall not suspend the sentence of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).
18 U.S.C. § 924(e)(1). The statute further defines “violent felony”:
(2) As used in this subsection –
....
(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;
Id. § 924(e)(2)(B)(i)–(ii). The final words of the definition of violent felony, italicized above, are
referred to as the ACCA’s residual clause.
In Johnson, 135 S. Ct. 2551, the Supreme Court held that the residual clause is
unconstitutionally vague and that increasing a defendant’s sentence under the clause is, therefore,
a denial of due process. Id. at 2563. However, the Supreme Court also made it clear that its holding
as to the ACCA’s residual clause “does not call into question application of the Act to the four
enumerated offenses, or the remainder of the Act’s definition of a violent felony.” Id.
In his § 2255 motion, Walton argues that this Court should apply the Supreme Court’s
decision retroactively to find that the increased sentence he received under the ACCA is
unconstitutional. The Sixth Circuit has not yet definitively weighed in on the issue of whether
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Johnson is to be applied retroactively. However, even if the decision is presumed retroactive, it does
not benefit Walton. The Criminal History section of the Presentence Investigation Report (“PSR”)
indicates that Walton was previously convicted in Davidson County, Tennessee, on four separate
counts of robbery armed with a deadly weapon, three counts of aggravated burglary, and three
counts of robbery.1 Burglary is one of the four enumerated offenses in the ACCA’s definition of
violent felony. In addition, under Tennessee law, robbery is an offense that “has as an element the
use, attempted use, or threatened use of physical force against the person of another.”
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Thus,
Walton’s predicate offenses do not fall under the ACCA’s residual clause, and his increased
sentence under the statute is not affected by the decision in Johnson.
The motion, together with the files and record in this case “conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255; see also Rule 4(b), Section 2255 Rules. Neither
a response from the United States Attorney nor an evidentiary is required. See Smith v. United
States, 348 F.3d 545, 550 (6th Cir. 2003); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.
1999). Walton’s conviction and sentence are valid; therefore, the § 2255 motion is DENIED.
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Walton committed the offenses of robbery armed with a deadly weapon on February 17,
1982 (#D0080), June 17, 1982 (#D0705), July 13, 1982 (#D0704) and July 14, 1982 (#D0703).
(PSR at 6-7, ¶¶ 21, 22, 23 & 24.) The aggravated burglaries occurred in and about December
1989 (#90-W-503). (Id. at 8, ¶¶ 26 & 27.) Walton committed the robberies on November 19,
1994, November 20, 1994, and November 21, 1994 (#95-B-844). (Id. at 9, ¶ 29.)
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The version of the Tennessee robbery statute applicable to Walton’s 1982 convictions
for robbery armed with a deadly weapon defined robbery as the “felonious and forcible taking
from the person of another, goods or money of any value, by violence or putting the person in
fear.” Tenn. Code Ann. § 39-2-501(a) (1982) (repealed). The current robbery statute, which
also was applicable to Walton’s robbery offenses occurring in November 1994, defines robbery
as “the intentional or knowing theft of property from the person of another by violence or putting
the person in fear.” Tenn. Code Ann. § 39-13-401 (2010). The Tennessee Supreme Court has
stated, in reference to the current statute, that “a violent act necessarily involves force.” State v.
Fitz, 19 S.W. 3d 213, 216 (Tenn. 2000).
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Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of its
decision denying a § 2255 motion and to issue a certificate of appealability (“COA”) “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal without this certificate.
A COA may issue only if the movant has made a substantial showing of the denial of a
constitutional right, and the COA must indicate the specific issue(s) which satisfy the required
showing. 28 U.S.C. §§ 2253(c)(2) & (3). A “substantial showing” is made when the movant
demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks and citation omitted); see also Henley v. Bell, 308 F. App’x 989, 990 (6th
Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal will succeed.
Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011) (same).
Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th
Cir. 2005).
There can be no question that the issue raised in this § 2255 motion is without merit for the
reasons previously stated. Because any appeal by Walton on the issue raised in his § 2255 motion
does not deserve attention, the Court DENIES a certificate of appealability.
The Prison Litigation Reform Act, 28 U.S.C. § 1915(a)-(b), does not apply to appeals of
orders denying § 2255 motions. Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather,
to appeal in forma pauperis in a § 2255 case, and thereby avoid the $505 appellate filing fee required
by 28 U.S.C. §§ 1913 and 1917, Walton must obtain pauper status pursuant to Federal Rule of
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Appellate Procedure 24(a). Kincade, 117 F.3d at 952. Rule 24(a) provides that a party seeking
pauper status on appeal must first file a motion in the district court, along with a supporting affidavit.
Fed. R. App. P. 24(a)(1). However, Rule 24(a) also provides that if the district court certifies that
an appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis,
the party must file his motion to proceed in forma pauperis in the appellate court. Fed. R. App. P.
24(a)(4)-(5).
In this case, for the same reasons the Court denies a certificate of appealability, the Court
determines that any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant
to Fed. R. App. P. 24(a), that any appeal in this matter is not taken in good faith, and leave to appeal
in forma pauperis is DENIED. Accordingly, if Walton files a notice of appeal, he must also pay the
full $505 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit
in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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