Perry v. United States of America
ORDER denying Pro Se Motion I 1 , denying Pro Se Motion 2 3 , denying Pro Se Motion III 8 , denying Second 2255 Motion 15 , denying Motion to Set Case For Status Hearing 26 . Signed by Judge Samuel H. Mays, Jr on 11-30-2017. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
Cv. No. 2:15-02200-SMH
Cr. No. 2:09-20324-SMH
Before the Court are five motions filed by Petitioner Robin
Perry: (1) motion seeking to vacate, set aside, or correct her
sentence under 28 U.S.C. § 2255 (“Pro Se Motion I”), filed on
March 23, 2015 (ECF No. 1); (2) Motion Pursuant to 28 U.S.C. §
2255(f)(3) to Vacate Sentence in Light of Descamps v. United
States and Johnson v. United States (“Pro Se Motion II”), filed
on July 20, 2015 (ECF No. 3); (3) amended motion seeking to
vacate, set aside, or correct her sentence under 28 U.S.C. §
2255 (“Pro Se Motion III”), filed on December 7, 2015 (ECF No.
8); (4) Second Supplemental Memorandum in Support of Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255
(“Second § 2255 Motion”), filed on May 17, 2016 (ECF No. 15);
Motion to Set Case For Status Hearing, filed on November 30,
2017 (ECF No. 26).
Petitioner challenges her sentence in Case
The government responded to the Second § 2255
Motion on September 15, 2016.
on September 26, 2016.
(ECF No. 21.)
(ECF No. 22.)
DENIED, and Pro Se Motion I, Pro Se Motion II, Pro Se Motion
III, and Motion to Set Case For Status Hearing are DENIED AS
On March 18, 2011, Petitioner pled guilty to being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g).
Petitioner was an armed career criminal under the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”) because she had
aggravated assault (deadly weapon).
Report (“PSR”) ¶¶ 42, 55, 57.)
On July 26, 2011, the Court
sentenced Petitioner to 180 months in prison.
(Cr. ECF No. 89
Had Petitioner not been an armed career criminal, she
Unless otherwise noted, all pin cites for record citations are to the
“PageID” page number.
Citations to (Cr. ECF at ##) refer to the criminal
case Perry v. United States, No. 2:09-cr-20324-SHM (W.D. Tenn.).
would have been subject to a statutory maximum sentence of 120
months in prison.
See 18 U.S.C. § 924(a)(2).
On March 23, 2015, Petitioner filed Pro Se Motion I.
No. 1; see also ECF No. 1-1.)
filed Pro Se Motion II.
On July 20, 2015, Petitioner
(ECF No. 3.)
Petitioner filed Pro Se Motion III.
On December 7, 2015,
(ECF No. 8; see also ECF
On April 25, 2016, Petitioner filed Pro Se Motion IV.
(ECF No. 12.)
After those motions were filed, Assistant Federal Public
Defender David Bell began representing Petitioner.
filed a Motion for Leave to Supplement Pro Se Filings Related to
Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C.
(ECF No. 13.)
The Court granted that motion on May 13,
(ECF No. 14.)
On May 17, 2016, Petitioner filed this Second Supplemental
Memorandum in Support of Motion to Vacate, Set Aside, or Correct
Sentence Under 28 U.S.C. § 2255.
(ECF No. 15.)
responded on September 15, 2016.
replied on September 26, 2016.
(ECF No. 21.)
(ECF No. 23.)
On December 16, 2016, the Court entered an Order denying as
moot Petitioner’s Pro Se Motion IV.
(ECF No. 23.)
stated that, because Petitioner was now represented by Bell,
“[t]he Court will consider [Petitioner’s] arguments for relief
based on her counsel’s filings.”
(Id. at 169.)
Pro Se Motion I, Pro Se Motion II, and Pro Se Motion III are
also DENIED AS MOOT.
On November 30, 2017, Petitioner filed her Motion to Set
Case For Status Hearing.
(ECF No. 26.)
Petitioner asks the
Court to set the case for a status hearing because “this Court
has yet to rule on [Petitioner’s] filings.”
Order rules on Petitioner’s motions.
(Id. at 176.)
Petitioner’s Motion to Set
Case For Status Hearing is DENIED AS MOOT.
Petitioner challenges her sentence based on Johnson, which
provides a new rule of constitutional law made retroactively
applicable to cases on collateral review.
Johnson v. United
States, 135 S. Ct. 2551 (2015); Welch v. United States, 136 S.
exceeds the statutory limits applicable to her offense.
was decided on June 26, 2015, and Petitioner filed her Pro Se
Motion II on July 20, 2015.
(ECF No. 3.)
Petitioner filed her
See 28 U.S.C. § 2255(f)(3).
In Johnson, the Supreme Court held that a sentence imposed
under the residual clause of the ACCA violates due process.
convictions -- those for Tennessee criminal attempt: aggravated
predicate violent felonies after Johnson.
(ECF No. 15 at 108.)
because, after Johnson, she no longer has at least three prior
ACCA-predicate convictions and, therefore, is no longer an armed
(Id. at 118.)
Tennessee Criminal Attempt: Aggravated Assault
Petitioner argues that her Tennessee “conviction was for
(ECF No. 21 at 130.)
necessarily rested on the elements of the predicate offense of
assault with a deadly weapon . . . which has as an element the
use or threatened use of violent force.”
(Id. at 133.)
government also argues that, “even if [Petitioner’s] conviction
qualify as a violent felony.”
within . . . the
violent felony provision” of the ACCA, “federal courts use the
United States v. Covington, 738 F.3d
759, 762 (6th Cir. 2013) (quotation marks omitted); see also
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).
that approach, courts “look only to the statutory definitions
underlying those convictions.”
Taylor v. United States, 495
U.S. 575, 600 (1990).
“[T]here are two steps in applying the categorical approach
violent felony under the ACCA.”
Covington, 738 F.3d at 763.
Id. (quoting Descamps v. United States, 133 S. Ct.
2276, 2293 (2013)).
constitutes . . . a
“[A] divisible statute, listing potential
element played a part in the defendant’s conviction.”
133 S. Ct. at 2283.
multiple, alternative versions of the crime,” a court uses a
“modified categorical approach” and may “examine a limited class
of documents,” such as the indictment and jury instructions, “to
determine which of a statute’s alternative elements formed the
basis of the defendant’s prior conviction.”
Id. at 2283-84.
“Where the defendant has pled guilty, these so-called Shepard
agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.’”
(quoting Shepard v. United States, 544 U.S. 13, 16 (2005)).
“[T]he question is whether the court documents establish that
the defendant necessarily admitted the elements of a predicate
offense through his plea.”
United States v. McMurray, 653 F.3d
367, 377 (6th Cir. 2011) (quotation marks omitted).
After having determined which of a statute’s alternative
elements formed the basis of the defendant’s prior conviction,
the second step in the categorical approach requires the court
category, is a [violent felony].”
Covington, 738 F.3d at 763.
Petitioner was convicted under Tenn. Code Ann. § 39–13–102.
(ECF No. 21-1 at 145.)
39–13–102 is divisible.”
United States v. Cooper, 739 F.3d 873, 880 n.2 (6th Cir. 2014).
Thus, the Court looks to the
Shepard documents to determine
which of § 39–13–102’s alternative elements formed the basis of
See Descamps, 133 S. Ct. at 2283-84.
Petitioner’s indictment demonstrates that she was convicted
under § 39–13–102(a)(1)(B).
A Tennessee grand jury charged that
Petitioner “did unlawfully and intentionally by use of a deadly
weapon . . . cause bodily injury to Angela Joyner.”
attempting the charged offense.2
(Id. at 145.)
Having confirmed that Petitioner was convicted under § 39–
13–102(a)(1)(B), the Court must determine whether an aggravated
See Covington, 738 F.3d at 763.
The Sixth Circuit has
held that violation of subsection (a)(1)(B) of the statute is a
Braden v. United States, 817 F.3d 926, 933 (6th
Petitioner’s Tennessee criminal attempt: aggravated
assault conviction is a violent felony under the ACCA.
Ohio Robbery (Physical Harm)
(physical harm) “cannot be said to be a violent felony because
necessarily entail the use, attempted use or threatened use of
physical force against another.”
(ECF No. 15 at 115.)
government argues that “the Sixth Circuit has determined that
constitutes a violent felony under § 924(e).”
(ECF No. 21-1 at 147.)
(Id. at 139.)
The Sixth Circuit has
held that a conviction under that subsection of the statute
That Petitioner pled to attempted aggravated assault does not affect
whether the conviction qualifies as a violent felony. Violent felonies
include attempts under 18 U.S.C. § 924(e)(2)(B)(i).
constitutes a violent felony.
United States v. Finley, No. 15–
6222, slip op. at 2–3 (6th Cir. Feb. 22, 2017); see also United
States v. Patterson, 853 F.3d 298, 303 (6th Cir. 2017) (“[E]ven
Ohio Rev. Code § 2911.02(A)(2), the lesser included form of
robbery, counts as a violent felony under the elements clause.”)
Petitioner’s conviction § 2911.02(A)(2) is a predicate offense
for career-offender purposes under the use-of-force clause.
Petitioner’s Second § 2255 Motion is DENIED.
28 U.S.C. § 2253(a) requires a 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
App. P. 22(b).
28 U.S.C. § 2253(c)(2); see also Fed. R.
No § 2255 movant may appeal without this
The COA must indicate the specific issue or issues that
satisfy the required showing.
28 U.S.C. §§ 2253(c)(2) & (3).
“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.”
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).
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.
Courts should not issue a COA as a matter of course.
Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005).
Petitioner is not entitled to relief under Johnson.
cannot present a question of some substance about which
reasonable jurists could differ.
The Court DENIES a certificate
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.
117 F.3d 949, 951 (6th Cir. 1997).
Kincade v. Sparkman,
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, a prisoner must obtain
pauper status pursuant to Federal Rule of Appellate Procedure
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.
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, a prisoner must file her motion to proceed in forma
pauperis in the appellate court.
See Fed. R. App. P. 24(a) (4)-
Because Petitioner is clearly not entitled to relief, the
Court has denied a certificate of appealability.
CERTIFIED, pursuant to Federal Rule of Appellate Procedure
24(a), that any appeal in this matter would not be taken in good
Leave to appeal in forma pauperis is DENIED.3
Motion is DENIED, and Pro Se Motion I, Pro Se Motion II, Pro Se
Motion III, and Motion to Set Case For Status Hearing are DENIED
So ordered this 30th day of November, 2017.
/s/ Samuel H. Mays, Jr. ____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
If Petitioner files a notice of appeal, she must also pay the
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.
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