Walls v. United States of America

Filing 6

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255); Denying Certificate of Appealability; Certifying Appeal Not Taken in Good Faith; and Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by Judge S. Thomas Anderson on 12/5/16. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
DORIAN WALLS,

)
)
Petitioner,
)
v.
)
No. 16-2133-STA-cgc
)
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
Dorian Walls (“Walls”), Bureau of Prisons register number 25307-076, an inmate at Forest CityMedium FCI in Forest City, Arkansas (§ 2255 Motion, ECF No. 1). For the reasons stated
below, Walls’s § 2255 Motion for Johnson relief is DENIED.
BACKGROUND
On June 26, 2012, a federal grand jury sitting in the Western District of Tennessee
returned an indictment against Walls charging him with one count of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g). The parties entered into a plea agreement, and
the Court accepted Walls’s change of plea at a hearing on November 16, 2012. The Court
sentenced Walls on March 7, 2013, to a term of incarceration of 120 months to be followed by
three years’ supervised release. (See Judgment, ECF No. 40.) Walls did not take a direct appeal.

1

Walls filed his § 2255 Motion on February 24, 2016, arguing that he was entitled to a
reduced sentence 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
Walls’s claim under Johnson v. United States. On November 17, 2016, the probation officer
submitted a memorandum to the Court, recommending that Walls was not entitled to any relief
under Johnson.
ANALYSIS
I. Claim for Johnson Relief
The Court holds that Walls 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
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

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

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 Walls as an armed career criminal based on three prior convictions
under Tennessee law: (1) Voluntary Manslaughter (committed in 1999); (2) Aggravated Robbery
(also committed in 1998); (3) Unlawful Possession of Cocaine with Intent to Sell, a Class B
felony (committed in 2007). However, the Supreme Court’s intervening decision in Johnson had
no effect on Walls’s sentence as an armed career criminal because none of Walls’s prior felony
offenses implicate the ACCA’s residual clause. First, the Sixth Circuit has recently held that
voluntary manslaughter under Georgia law falls under the ACCA’s use-of-force clause because a
crime that causes the death of another “necessarily requires proof that the individual used ‘force
capable of causing physical pain or injury.’”5 Georgia’s statute makes it a crime to “cause[] the
death of another human being under circumstances which would otherwise be murder and if he

3

18 U.S.C. § 924(e)(2)(B)

4

Johnson, 135 S. Ct. at 2257.

5

United States v. Jackson, --- F. App’x ---, 2016 WL 3619812, at *2 (6th Cir. July 1,
2016) (citing United States v. Anderson, 695 F.3d 390, 400 (6th Cir. 2012)).
3

acts solely as the result of a sudden, violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a reasonable person.”6 In this case Walls was
previously convicted of voluntary manslaughter under Tennessee law. Much like the Georgia
statute at issue in Jackson, Tennessee’s statute defines voluntary manslaughter as “the intentional
or knowing killing of another in a state of passion produced by adequate provocation sufficient
to lead a reasonable person to act in an irrational manner.”7 The Court finds the Sixth Circuit’s
reasoning in Jackson persuasive and holds that Walls’s prior Voluntary Manslaughter conviction
continues to qualify as a violent felony under the ACCA’s use-of-force clause.
Second, Walls’s Aggravated Robbery conviction qualifies as a violent felony under the
ACCA’s use-of-force clause. Walls’s Aggravated Robbery conviction was 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. § 39-13-401 was
categorically a “violent felony” for purposes of the ACCA, specifically under the use-of-force
clause.8 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.9 It follows that Aggravated Burglary also constitutes a “violent

6

Id. at *1 (citing Ga. Code Ann. § 16–5–2(a).

7

Tenn. Code Ann. § 39-13-211.

8

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

9

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

4

felony” under the ACCA’s use-of-force clause. Therefore, Walls’s prior Aggravated Burglary
conviction continues to be a violent felony under the ACCA’s use-of-force clause.
Finally, Walls’s conviction for Unlawful Possession of Cocaine with Intent to Sell
qualifies as a serious drug offense for purposes of the ACCA. The ACCA defines a “serious
drug offense” to include an “offense under State law, involving . . . possessing with intent to
manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or
more is prescribed by law.”10 Here Walls was convicted of a Class B felony under Tenn. Code
Ann. § 39-17-417, which made it a crime “for a defendant to knowingly [p]ossess a controlled
substance with intent to manufacture, deliver or sell the controlled substance”11 and classified a
violation of the statute involving 0.5 grams or more of any substance containing cocaine as a
Class B felony.12

Under the Tennessee Criminal Sentencing Reform Act of 1989, a Class B

felony carries an overall maximum term of imprisonment of 30 years and even under Range I,
the lowest range for offenders with the fewest number of prior convictions, a maximum term of

10

See 18 U.S.C. § 924(e)(2)(A)(ii) (defining an a “serious drug offense” to include an
“offense under State law, involving . . . possessing with intent to manufacture or distribute, a
controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C.
802)), for which a maximum term of imprisonment of ten years or more is prescribed by law).
11

Tenn. Code Ann. § § 39-17-417(a)(4).

Under the Tennessee Criminal Sentencing Reform Act of 1989, “all felony offenses are
classified based on severity of offense with letter designations: the most serious felonies graded
as Class A and the least serious as Class E . . . .” § 40-35-101, Cmt. of the Tenn. Sentencing
Comm’n. Furthermore, “[e]ach felony class carries a maximum and minimum sentence” and “is
divided into three ranges called Range I, Range II and Range III” where each “’range’
determination is based upon the number of prior convictions which, in turn, determines the
potential span for that particular offender.” Id.
12

5

12 years’ imprisonment. The Court concludes that Walls’s 2007 drug offense satisfies the
ACCA’s definition of a “serious drug offense” and qualifies as an ACCA predicate conviction.
Therefore, Joy’s prior drug offense does not implicate the ACCA’s residual clause.
Having determined that all three of Walls’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 Walls is not entitled to relief under Johnson. Therefore, Walls’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.” 13 No § 2255
movant may appeal without this certificate. The COA must indicate the specific issue(s) that
satisfy the required showing.14 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.”15 A COA does not require a showing that the appeal will
succeed.16 Courts should not issue a COA as a matter of course.17

13

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

14

28 U.S.C. §§ 2253(c)(2) & (3).

15

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).
16

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

2011).
6

In this case, for the reasons previously stated herein, the issues raised by Walls in support
of his § 2255 Motion lack substantive merit and, therefore, he 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.18 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).19 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.20 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.21
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,

17

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

18

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

19

Id. at 952.

20

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

21

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

7

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.22
CONCLUSION
Walls’s Motion to Vacate Judgment pursuant to 28 U.S.C. § 2255 is DENIED. The
Court further denies Walls 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: December 5, 2016.

22

If Walls 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.
8