Estes v. United States of America
Filing
27
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING A 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 5/13/20. (skc)
Case 1:16-cv-01256-JDT-jay Document 27 Filed 05/13/20 Page 1 of 9
PageID 168
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JAMES EDWARD ESTES,
Movant,
VS.
UNITED STATES OF AMERICA,
Defendant.
)
)
)
)
)
)
)
)
)
No. 16-1256-JDT-jay
Crim. No. 07-10083-JDT
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING A CERTIFICATE OF APPEALABILITY,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Before the Court is a motion pursuant to 28 U.S.C. § 2255 filed by the Movant, James
Edward Estes. For the reasons stated below, the Court DENIES Estes’s § 2255 motion.
On February 27, 2008, Estes entered a guilty plea to a indictment charging him with one
count of possessing firearms after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g). (No. 07-10083, Crim. ECF Nos. 30 & 32.) In the written plea agreement, Estes waived
his right to appeal the conviction except for the Court’s denial of his motion to suppress. (Id. Crim.
ECF No. 31.) At the sentencing hearing on July 1, 2008, the Court determined, based on his prior
felony convictions, that Estes qualified for an enhanced sentence under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e).1 See also U.S.S.G. § 4B1.4. He was sentenced to a 204-month
1
The ACCA requires a fifteen-year sentence for a felon who is convicted of unlawfully
possessing a firearm in violation of 18 U.S.C. § 922(g) and who has three prior convictions “for
a violent felony or a serious drug offense, or both, committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1).
Case 1:16-cv-01256-JDT-jay Document 27 Filed 05/13/20 Page 2 of 9
PageID 169
term of imprisonment and a three-year period of supervised release. (No. 07-10083, Crim. ECF
Nos. 37 & 39.) On appeal, the Sixth Circuit affirmed the denial of the motion to suppress. United
States v. Estes, 343 F. App’x 97 (6th Cir. 2009), cert. denied, 558 U.S. 1134 (2010).
Estes filed a timely motion pursuant to 28 U.S.C. § 2255 on January 11, 2011, which was
denied. Estes v. United States, No. 11-1012-JDT-egb (W.D. Tenn. Feb. 26, 2014), certif. of
appealability denied, No. 14-5362 (6th Cir. Aug. 27, 2014).
The Sixth Circuit subsequently granted Estes’s application for permission to file a second
or successive § 2255 motion challenging the constitutionality of his sentence under Johnson v.
United States, 135 S. Ct. 2551 (2015), and transferred the matter to this Court. In re Estes, No.
16-5829 (6th Cir. Sept. 23, 2016). The Government filed a response to the motion as directed by
the Court. (ECF No. 21.) Despite requesting and being granted leave to file a reply, (ECF No.
23), Estes chose not to do so.
Pursuant to § 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
2
Case 1:16-cv-01256-JDT-jay Document 27 Filed 05/13/20 Page 3 of 9
PageID 170
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 ACCA defines “violent felony” as “any crime punishable by imprisonment for a term
exceeding one year@ that (1) “has as an element the use, attempted use, or threatened use of physical
force against the person of another” (the “elements” or “use-of-force” clause), (2) “is burglary,
arson, or extortion, involves use of explosives” (the “enumerated offenses” clause), or (3)
“otherwise involves conduct that presents a serious potential risk of physical injury to another”
(the “residual” clause). Id., § 924(e)(2)(B)(i)-(ii). In Johnson v. United States, the Supreme Court
held the ACCA’s residual clause is unconstitutionally vague and that increasing a defendant’s
sentence under the clause is, therefore, a denial of due process. 135 S. Ct. at 2563. The Supreme
Court later held the decision in Johnson was retroactive and thus applicable to cases on collateral
review. Welch v. United States, 136 S. Ct. 1257 (2016).
The prior convictions originally qualifying Estes for an ACCA-enhanced sentence were:
(1) a 1969 North Carolina federal conviction for coercing a female to travel in interstate commerce
to engage in prostitution, in violation of 18 U.S.C. § 2422(b); (2) a 1982 Tennessee state conviction
for aggravated assault; (3) a 1987 Tennessee state conviction for aggravated assault; and (4) a 1988
Tennessee federal conviction for possession of cocaine with intent to distribute, in violation of 21
U.S.C. § 841(a). (Presentence Report (PSR) ¶¶ 23, 26, 27 & 29.) In the application to file a second
or successive § 2255 motion, Estes asserted only that his 1969 conviction had been deemed an
ACCA predicate under the residual clause and could no longer be counted after the decision in
Johnson. (ECF No. 2 at PageID 9.) However, in granting leave to file the successive motion, the
3
Case 1:16-cv-01256-JDT-jay Document 27 Filed 05/13/20 Page 4 of 9
PageID 171
Sixth Circuit noted that Estes’s Tennessee convictions for aggravated assault also may be affected
by Johnson. The Court of Appeals cited United States v. McMurray, 653 F.3d 367, 377 (6th Cir.
2011), in which it was held that Tennessee aggravated assault is not categorically a violent felony
under the ACCA’s use-of-force clause because the statute can be violated by reckless as well as
intentional conduct. In re Estes, No. 16-5829, slip op. at 2. Estes then filed an amended § 2255
motion in which he also challenges his convictions for aggravated assault, (ECF No. 12); though
he does not specifically state his grounds for doing so, the Court presumes he contends those
convictions are invalid on the potential ground identified by the Sixth Circuit.
In order to determine whether a prior conviction is a violent felony under the ACCA, courts
must use the “categorical approach” prescribed in Taylor v. United States, 495 U.S. 575 (1990).
Under that approach, courts look “only to the statutory definitions of the prior offense, and not to
the particular facts underlying those convictions.” Id. at 600. If a statute’s elements are the same
as the “generic” offense, the conviction can be an ACCA predicate. Descamps v. United States,
570 U.S. 254, 261 (2013) (citing Taylor). However, if the statute “sweeps more broadly than the
generic crime, a conviction under that law cannot count as an ACCA predicate, even if the
defendant actually committed the offense in its generic form.” Id.
If the statute in question is “divisible,” listing “potential offense elements in the
alternative,” id. at 260, courts use a “modified categorical approach” to determine which of those
alternative elements was the basis of the conviction. Id. at 262-63. In making that determination,
courts may examine documents such as charging papers, jury instructions, plea agreement, the
transcript of a plea colloquy, or some other “comparable judicial record” showing that the
defendant admitted the generic elements of the offense. Shepard v. United States, 544 U.S. 13, 26
(2005); Taylor, 495 U.S. at 602.
4
Case 1:16-cv-01256-JDT-jay Document 27 Filed 05/13/20 Page 5 of 9
PageID 172
The United States does not formally concede that Estes’s conviction for coercing a female
to travel in interstate commerce to engage in prostitution is not still a crime of violence under the
ACCA. (ECF No. 21 at PageID 150.) However, the Government does acknowledge that at least
one other federal appellate court had held that a violation of 18 U.S.C. § 2422(a) qualified as a
crime of violence under 18 U.S.C. § 16(b), a provision that is similar to the ACCA’s residual
clause.2 See United States v. Keelan, 786 F.3d 865, 871 (11th Cir. 2015). In Sessions v. Dimaya,
138 S. Ct. 1204 (2018), the Supreme Court invalidated § 16(b) using the same reasoning stated in
Johnson. Given the similarity of the residual clauses, it seems to follow that if 18 U.S.C. § 2242(a)
qualified as a crime of violence only under § 16(b), it also would qualify as a crime of violence
only under the residual clause of the ACCA rather than under the use-of-force clause. For purposes
of this order, the Court will assume that Estes’s § 2242(a) conviction for coercing a female to travel
in interstate commerce to engage in prostitution cannot be counted as an ACCA predicate.
The Government contends that even if the conviction under 18 U.S.C. § 2242(a) is
disregarded, Estes still has two Tennessee state convictions for aggravated assault and a federal
drug conviction that qualify him as an armed career criminal under the ACCA.3
At the time of Estes’s 1982 and 1987 aggravated assault convictions, the versions of the
statute in effect at the time, Tennessee Code Annotated § 39-2-101(b), were very similar. The first
2
Eighteen U.S.C. § 16 has a use-of-force clause, also similar to that in the ACCA,
defining a “crime of violence” as “an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of another.” § 16(a).
3
Estes asserts that if the Tennessee state convictions are not counted he no longer
qualifies for an ACCA sentence, but he does not actually argue that his prior federal drug
conviction is not an ACCA predicate.
5
Case 1:16-cv-01256-JDT-jay Document 27 Filed 05/13/20 Page 6 of 9
PageID 173
four subdivisions were essentially identical in both versions, providing that a person was guilty of
aggravated assault if he:
(1) Attempts to cause or causes serious bodily injury to another willfully,
knowingly, or recklessly under circumstances manifesting extreme indifference to
the value of human life;
(2) Attempts to cause or willfully or knowingly causes bodily injury to another
with a deadly weapon;
(3) Assaults another while displaying a deadly weapon or while the victim knows
such person has a deadly weapon in his possession; or
(4) Being the parent or custodian of a child or the custodian of an adult, willfully
or knowingly fails or refuses to protect such child or adult from an aggravated
assault described in (1), (2), or (3) above.
Tenn. Code Ann. § 39-2-101(b) (1982). The version in effect in 1987 had added a fifth subdivision
providing that a person could be convicted of aggravated assault if that person:
(5) After having been enjoined, restrained, or otherwise prohibited by a diversion
order, condition of probation or other court order from initiating contact with a
person, is twice convicted of committing battery on such person; provided,
however, the battery described in this subdivision shall not constitute aggravated
battery unless the defendant had actual knowledge that he or she was prohibited by
an injunction, court order or condition of probation from initiating contact with the
victim of the battery.
Tenn. Code Ann. § 39-2-101(b)(5) (1986); see also Dillard v. United States, 768 F. App’x 480,
482-83 (6th Cir. 2019) (discussing the statutory versions in effect for 1984 and 1987 convictions
for Tennessee aggravated assault).
The Tennessee state courts, in applying yet another similar version of the aggravated
assault statute, treated the various subsections as alternative elements. See, e.g., State v. Slack, No.
62, 1991 WL 231111, at *1-2 & n.1 (Tenn. Nov. 12, 1991) (Discussing a version that had added a
sixth subdivision and stating, “[t]he indictment in this matter, although inartfully drawn, can be
interpreted to charge . . . any of the three forms of aggravated assault covered in the trial court’s
6
Case 1:16-cv-01256-JDT-jay Document 27 Filed 05/13/20 Page 7 of 9
PageID 174
jury instructions.”). The various subsections of the versions of the statute under which Estes was
convicted are thus divisible.
The Sixth Circuit held in McMurray that the Tennessee aggravated assault statute in effect
in 1993, Tennessee Code Annotated § 39-13-102, encompassed reckless conduct and was not
categorically a crime of violence under either the use-of-force clause or the residual clause of the
ACCA. 653 F.3d at 373 77. The Government does not dispute that the earlier versions under
which Estes was convicted similarly encompassed reckless conduct. However, the decision in
McMurray has been repudiated by the Sixth Circuit.
In Voisine v. United States, 136 S. Ct. 2272 (2016), the Supreme Court addressed 18 U.S.C.
§ 922(g)(9), which prohibits a person convicted of a “misdemeanor crime of domestic violence”
from possessing a firearm or ammunition with a connection to interstate commerce. Section
921(a)(33)(A) defines “misdemeanor crime of domestic violence” to include misdemeanors that
have, “as an element, the use or attempted use of physical force.” The Supreme Court explained
that “[n]othing in the word ‘use’ . . . indicates that § 922(g)(9) applies exclusively to knowing or
intentional domestic assaults.” 136 S. Ct. at 2278. “A person who assaults another recklessly
‘use[s]’ force, no less than one who carries out that same action knowingly or intentionally.” Id.
at 2280.
Following Voisine, a panel of the Sixth Circuit held that a crime requiring only recklessness
can be a crime of violence under the Career Offender Guideline, U.S.S.G. § 4B1.2(a), stating, “[i]n
sum, the argument that crimes satisfied by reckless conduct categorically do not include the ‘use
of physical force’ simply does not hold water after Voisine.” United States v. Verwiebe, 874 F.3d
258, 264 (6th Cir. 2017). In United States v. Harper, 875 F.3d 329, 330 (6th Cir. 2017), another
case involving the Career Offender Guideline, a different panel of the Sixth Circuit specifically
7
Case 1:16-cv-01256-JDT-jay Document 27 Filed 05/13/20 Page 8 of 9
PageID 175
applied Verwiebe to a Tennessee conviction for aggravated assault, while expressing disagreement
with that decision. Verwiebe also was applied in the context of the ACCA and Tennessee
aggravated assault in both Dillard, 768 F. App’x at 484-87, and United States v. Davis, 900 F.3d
733, 736 (6th Cir. 2018), cert. denied, 139 S. Ct. 1374 (2019).
In the PSR prepared by the Probation Office in this case, both the 1982 and the 1987
Tennessee aggravated assault convictions are described as involving charges of assault with a
firearm. (PSR ¶¶ 26 & 27.) Estes has never objected to those descriptions and does not now assert
that his prior convictions were not specifically for assault with a firearm. Thus, the convictions
could not have been under subsection (b)(4) of Tennessee Code Annotated § 39-2-101, involving
a parent’s failure to protect a child, or under subsection (b)(5), involving committing battery in
violation of an order of protection. Because it is now the law in the Sixth Circuit that reckless
conduct satisfies the use-of-force clause of the ACCA, convictions under subsections (b)(1), (b)(2)
and (b)(3) of the Tennessee statute qualify as violent felonies.
Unless overturned or abrogated, the decisions in Verwiebe, Harper, Davis, and Dillard
compel the conclusion that even if Estes’s 1982 and 1987 Tennessee aggravated assault
convictions involved reckless conduct, both are properly counted as ACCA predicate offenses.
Having considered Estes’s § 2255 motion and the entire record in this case, the Court finds
he was properly sentenced and is not entitled to relief. 28 U.S.C. § 2255(b); see also Rule 4(b),
§ 2255 Rules. The § 2255 motion is DENIED.
Twenty-eight U.S.C. § 2253(a) requires the 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.
8
Case 1:16-cv-01256-JDT-jay Document 27 Filed 05/13/20 Page 9 of 9
PageID 176
§ 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). Courts should not issue a COA as a matter of course. Bradley
v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005).
The issues raised in this § 2255 motion are not debatable for the reasons stated; therefore,
the Court DENIES a certificate of appealability. It is also CERTIFIED, pursuant to Federal Rule
of Appellate Procedure 24(a), that an appeal in this case by Estes would not be taken in good faith.
Leave to appeal in forma pauperis is DENIED.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?