Perry v. United States of America

Filing 27

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
WESTERN DIVISION

ROBIN PERRY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cv. No. 2:15-02200-SMH
Cr. No. 2:09-20324-SMH

ORDER

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).
No. 2:09-20324.

Petitioner challenges her sentence in Case

The government responded to the Second § 2255

Motion on September 15, 2016.
on September 26, 2016.
For

the

(ECF No. 21.)

Petitioner replied

(ECF No. 22.)

following

reasons,

the

Second

§ 2255

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 AS
MOOT.
I.

Background
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).
(Cr.

ECF

No.

81

at

145.)1

At

the

time

of

her

sentencing,

Petitioner was an armed career criminal under the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”) because she had
three

prior

convicted
assault;

ACCA-predicate

of:
(2)

(1)
Ohio

convictions.

Tennessee
robbery

criminal

(physical

aggravated assault (deadly weapon).
Report (“PSR”) ¶¶ 42, 55, 57.)

Petitioner
attempt:
harm);

been

aggravated
(3)

Ohio

(Presentence Investigation

On July 26, 2011, the Court

sentenced Petitioner to 180 months in prison.
at 177.)

and

had

(Cr. ECF No. 89

Had Petitioner not been an armed career criminal, she

1

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.).

2

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.
No. 8-1.)

(ECF

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.

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.
§ 2255.
2016.

(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.

The government

(ECF No. 21.)

Petitioner

(ECF No. 23.)

On December 16, 2016, the Court entered an Order denying as
moot Petitioner’s Pro Se Motion IV.

(ECF No. 23.)

The Order

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.”
3

(Id. at 169.)

Petitioner’s

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.)

This

Petitioner’s Motion to Set

Case For Status Hearing is DENIED AS MOOT.
II.

Timeliness
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.
Ct.

1257,

1268

constitutional

(2016).
error

Petitioner’s

that

resulted

§

in

2255
a

Motion

sentence

alleges

that

exceeds the statutory limits applicable to her offense.

now

Johnson

was decided on June 26, 2015, and Petitioner filed her Pro Se
Motion II on July 20, 2015.

(ECF No. 3.)

Motion

Johnson.

timely.

within

one

year

of

Petitioner filed her

Petitioner’s

Motion

is

See 28 U.S.C. § 2255(f)(3).

III. Analysis
In Johnson, the Supreme Court held that a sentence imposed
under the residual clause of the ACCA violates due process.
S.

Ct.

at

2563.

Petitioner

argues
4

that

two

of

her

135
prior

convictions -- those for Tennessee criminal attempt: aggravated
assault

and

Ohio

robbery

(physical

harm)

predicate violent felonies after Johnson.
Petitioner

contends

that

she

is

--

are

no

longer

(ECF No. 15 at 108.)

entitled

to

be

resentenced

because, after Johnson, she no longer has at least three prior
ACCA-predicate convictions and, therefore, is no longer an armed
career criminal.
A.

(Id. at 118.)

Tennessee Criminal Attempt: Aggravated Assault

Petitioner argues that her Tennessee “conviction was for
attempted

reckless

Circuit

has

another

[can]

purposes.”

“held

that

not

(Id.

Petitioner’s

aggravated

recklessly

qualify

at

as

110-11.)

“conviction

aggravated assault.”

assault,”

a

and

that

causing

bodily

violent

felony

The

could

the

government

not

have

injury

to

for

ACCA

contends

that

been

(ECF No. 21 at 130.)

Sixth

for

reckless

Petitioner’s “plea

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.)

The

government also argues that, “even if [Petitioner’s] conviction
were

for

reckless

aggravated

qualify as a violent felony.”
“When

determining

assault

.

.

.

it

would

still

(Id.)

which

crimes

fall

within . . . the

violent felony provision” of the ACCA, “federal courts use the
categorical approach.”

United States v. Covington, 738 F.3d
5

759, 762 (6th Cir. 2013) (quotation marks omitted); see also
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).

Using

that approach, courts “look[] only to the statutory definitions
of

the

prior

offenses,

and

not

underlying those convictions.”

to

the

particular

facts

Taylor v. United States, 495

U.S. 575, 600 (1990).
“[T]here are two steps in applying the categorical approach
to

determine

whether

a

prior

conviction

violent felony under the ACCA.”
“First,

a

divisible

court
by

elements.’”

must

determining

Covington, 738 F.3d at 763.

whether
if

the

the

statute

statute

lists

at

issue

is

‘alternative

Id. (quoting Descamps v. United States, 133 S. Ct.

2276, 2293 (2013)).
offense

ask

constitutes . . . a

elements

“[A] divisible statute, listing potential

in

the

alternative,

renders

opaque

element played a part in the defendant’s conviction.”

which

Descamps,

133 S. Ct. at 2283.
If

a

statute

is

divisible,

meaning

that

it

“comprises

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
documents

may

include

the

‘charging
6

document,

written

plea

agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.’”
United

States

v.

Denson,

728

F.3d

603,

608

(6th

Cir.

2013)

(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
to

“ask

whether

the

offense

the

category, is a [violent felony].”

statute

describes,

as

a

Covington, 738 F.3d at 763.

Petitioner was convicted under Tenn. Code Ann. § 39–13–102.
(ECF No. 21-1 at 145.)

“[Section]

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
Petitioner’s conviction.

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.”

7

(ECF No.

21-1

at

143

(emphasis

added).)

Petitioner

attempting the charged offense.2

pled

guilty

to

(Id. at 145.)

Having confirmed that Petitioner was convicted under § 39–
13–102(a)(1)(B), the Court must determine whether an aggravated
assault

under

that

provision,

as

a

category,

felony.

See Covington, 738 F.3d at 763.

is

a

violent

The Sixth Circuit has

held that violation of subsection (a)(1)(B) of the statute is a
violent felony.
Cir. 2016).

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.
B.

Ohio Robbery (Physical Harm)

Petitioner

argues

that

her

conviction

for

Ohio

robbery

(physical harm) “cannot be said to be a violent felony because
threatening

to

inflict

physical

harm

on

another

does

not

necessarily entail the use, attempted use or threatened use of
physical force against another.”

(ECF No. 15 at 115.)

The

government argues that “the Sixth Circuit has determined that
the

force

inherent

in

Ohio’s

definition

of

constitutes a violent felony under § 924(e).”
Petitioner
2911.02(A)(2).

was

convicted

under

(ECF No. 21-1 at 147.)

‘physical

harm’

(Id. at 139.)

Ohio

Rev.

Code

§

The Sixth Circuit has

held that a conviction under that subsection of the statute
2

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).

8

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
predicate

has

three

offenses.

convictions

The

ACCA

that
was

qualify
properly

as

ACCA

applied.

Petitioner’s Second § 2255 Motion is DENIED.
IV. Appealability
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
constitutional right.”
App. P. 22(b).

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

No § 2255 movant may appeal without this

certificate.
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
9

A

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).

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).

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.

She

cannot present a question of some substance about which
reasonable jurists could differ.

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

Fed.

However, Rule 24(a) also provides that, if

the district court certifies that an appeal would not be taken
10

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)-

(5).
Because Petitioner is clearly not entitled to relief, the
Court has denied a certificate of appealability.

It is

CERTIFIED, pursuant to Federal Rule of Appellate Procedure
24(a), that any appeal in this matter would not be taken in good
faith.
V.

Leave to appeal in forma pauperis is DENIED.3

Conclusion
For

the

foregoing

reasons,

Petitioner’s

Second

§ 2255

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
AS MOOT.

So ordered this 30th day of November, 2017.

/s/ Samuel H. Mays, Jr. ____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

3

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.

11