Jackson v. United States of America

Filing 17

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge S. Thomas Anderson on 8/17/16. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
NICKELL JACKSON,

)
)
Petitioner,
)
v.
)
No. 13-2731-STA-dkv
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
______________________________________________________________________________
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255
DENYING CERTIFICATE OF APPEALABILITY
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
_____________________________________________________________________________
Before the Court is a Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or
Correct Sentence by a Person in Federal Custody (the “§ 2255 Motion”) filed by Petitioner
Nickell Jackson (“Jackson”), Bureau of Prisons register number 18145-076, an inmate at FCIMemphis in Memphis, Tennessee (§ 2255 Motion, ECF No. 1), as amended in Jackson’s July 20,
2015, motion to supplement his § 2255 based on the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015). For the reasons stated below, Jackson’s § 2255 Motion
for Johnson relief is DENIED.
BACKGROUND
The Court set out the complete procedural history of Jackson’s underlying criminal case
and his initial § 2255 Motion in a previous order and need not restate it here. Briefly, Jackson
entered into a plea agreement with the United States and agreed to plead guilty to one count of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On August 20,

1

2008, United States District Judge J. Daniel Breen sentenced Jackson to a term of imprisonment
of 180 months to be followed by three years’ supervised release and imposed a special
assessment of $100. (See Judgment, ECF No. 35.) Jackson did not take a direct appeal. Jackson
filed his pro se § 2255 Motion on September 18, 2013. On May 18, 2016, the Court entered an
order holding that Jackson’s claims for relief in his initial petition were time-barred. However,
the Court allowed Jackson to supplement his petition to add a request for review under Johnson
v. United States, 135 S. Ct. 2551 (2015). Pursuant to Administrative Order 2016-21, the United
States Probation Office conducted an initial review of Jackson’s claim under Johnson v. United
States.

On July 29, 2016, the probation officer submitted a memorandum to the Court,

recommending that Jackson was not entitled to any relief under Johnson.
ANALYSIS
I. Claim for Johnson Relief
The Court holds that Jackson is not entitled to relief pursuant to Johnson v. United States,
135 S. Ct. 2251 (2015). The Supreme Court in Johnson explained that the United States Code
makes it a crime against the United States for certain classes of persons, such as convicted
felons, to possess firearms and provides for a punishment of up to ten years’ imprisonment.1 The
Armed Career Criminal Act increases the penalty for unlawful possession of a firearm where the
offender has “three or more earlier convictions for a ‘serious drug offense’ or a ‘violent felony’”
and sets a minimum term of imprisonment of 15 years and a maximum of life.2 The ACCA
defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one

1

Johnson v. United States, 135 S. Ct. 2251, 2255 (2015) (citing 18 U.S.C. § 924(a)(2)).

2

Id. (citing 18 U.S.C. § 924(e)(1)).

2

year . . . 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.”3 The phrase “or otherwise involves conduct that presents a serious potential risk of
physical injury to another” has come to be known as the ACCA’s residual clause.
In Johnson, the Supreme Court held that the residual clause was unconstitutionally void
for vagueness.4 Johnson left the ACCA’s use-of-force clause and enumerated offenses clause
undisturbed. In Welch v. United States, 136 S. Ct. 1257 (2016), the Supreme Court subsequently
held that, as applied to ACCA cases, Johnson is a new substantive rule of constitutional law that
has been made retroactive to cases on collateral review, and therefore, defendants can bring
initial or successive 28 U.S.C. § 2255 petitions challenging their sentences enhanced under the
ACCA’s residual clause.
The Court sentenced Jackson as an armed career criminal based on five prior convictions
under Tennessee law: (1) Burglary II (committed in 1988); (2) Aggravated Robbery (two cases,
both committed in 1993); (3) Aggravated Robbery (also committed in 1993); (4) Criminal
Attempt-Burglary and Reckless Endangerment-Use of a Deadly Weapon; and (5) Reckless
Aggravated Assault. However, the Supreme Court’s intervening decision in Johnson had no
effect on Jackson’s sentence as an armed career criminal because none of Jackson’s prior felony
offenses implicate the ACCA’s residual clause. First, the Sixth Circuit held in United States v.
Jones, 673 F.3d 497 (6th Cir. 2012), a prior conviction under Tennessee’s second degree

3

18 U.S.C. § 924(e)(2)(B)

4

Johnson, 135 S. Ct. at 2257.

3

burglary statute (Burglary II) constituted a “violent felony” for purposes of the ACCA’s
enumerated offenses clause and comported with the generic definition of burglary.5 In light of
Jones, the Court holds that Jackson’s prior conviction for Burglary II remains a “violent felony”
under the enumerated offenses clause of the ACCA. The Court would add that according to the
Presentence Investigative Report, Jackson has a second Burglary II conviction from 1988, which
would also qualify as a “violent felony” for purposes of the ACCA.
Second, Jackson’s Aggravated Robbery convictions qualify as violent felonies under the
ACCA’s use-of-force clause. Jackson’s Aggravated Robbery convictions were based on Tenn.
Code Ann. § 39-13-402, which defines certain aggravating factors and applies them to
Tennessee’s robbery statute, Tenn. Code Ann. § 39-13-401. In United States v. Mitchell, 743
F.3d 1054 (6th Cir. 2014), the Sixth Circuit held that robbery under Tenn. Code Ann. § 39-13401 was categorically a “violent felony” for purposes of the ACCA, specifically under the useof-force clause.6 And in United States v. Priddy, 808 F.3d 676 (6th Cir. 2015), a case decided
after the Supreme Court’s decision in Johnson, the Sixth Circuit held that Johnson did nothing to
alter its previous holding in Mitchell.7 It follows that Aggravated Burglary also constitutes a
“violent felony” under the ACCA’s use-of-force clause.

Therefore, Jackson’s two prior

Aggravated Burglary convictions continue to qualify as violent felonies under the ACCA’s useof-force clause.

5

United States v. Jones, 673 F.3d 497, 505 (6th Cir. 2012).

6

United States v. Mitchell, 743 F.3d 1054, 1060 (6th Cir. 2014).

7

United States v. Priddy, 808 F.3d 676, 686 (6th Cir. 2015).

4

Having determined that at least three of Jackson’s prior felony convictions continue to be
“violent felonies” for ACCA purposes and do not implicate the ACCA’s residual clause, the
Court holds that Jackson is not entitled to relief under Johnson. Therefore, Jackson’s §2255
Motion for Johnson relief must be DENIED.
II. Appeal Issues
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.” 8 No § 2255
movant may appeal without this certificate. The COA must indicate the specific issue(s) that
satisfy the required showing.9 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.”10 A COA does not require a showing that the appeal will
succeed.11 Courts should not issue a COA as a matter of course.12
In this case, for the reasons previously herein and in the previous order of the Court, the
issues raised by Jackson in support of his § 2255 Motion lack substantive merit and, therefore, he

8

28 U.S.C. § 2253(c)(2); see also Fed. R. App. P. 22(b).

9

28 U.S.C. §§ 2253(c)(2) & (3).

10

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).
11

Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir.

12

See Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005).

2011).

5

cannot present a question of some substance about which reasonable jurists could differ.
Therefore, the Court DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. §§
1915(a)-(b), does not apply to appeals of orders denying § 2255 motions.13 Rather, to appeal in
forma pauperis in a § 2255 case, and thereby avoid the appellate filing fee required by 28 U.S.C.
§§ 1913 and 1917, the prisoner must obtain pauper status pursuant to Federal Rule of Appellate
Procedure 24(a).14 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.15 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 prisoner must file his motion to proceed
in forma pauperis in the appellate court.16
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 Federal Rule of Appellate Procedure 24(a), that any appeal in this matter would not
be taken in good faith. Leave to appeal in forma pauperis is DENIED.17

13

See Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997).

14

Id. at 952.

15

See Fed. R. App. P. 24(a)(1).

16

See Fed. R. App. P. 24(a) (4)-(5).

17

If Jackson 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 within 30 days.
6

CONCLUSION
Jackson’s Motion to Vacate Judgment pursuant to 28 U.S.C. § 2255 is DENIED. The
Court further denies Jackson a certificate of appealability, denies leave to proceed in forma
pauperis on appeal, and certifies that any appeal in this case would not be taken in good faith.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: August 17, 2016.

7