Bearden v. United States of America

Filing 14

ORDER granting 1 motion to vacate sentence, finding as moot 5 Motion ; finding as moot 11 Motion. Signed by Judge Samuel H. Mays, Jr on 07/26/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LEO BEARDEN,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 16-cv-02472-SHM
No. 04-cr-20195-SHM

ORDER

Before the Court is Leo Bearden’s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (the “§ 2255 Motion”), filed on June 20, 2016.
(ECF No. 1; see also Mem. in Supp. of Mot. to Vacate, Set Aside
or Correct Sentence Under 28 U.S.C. § 2255, ECF No. 1-2 (“Mem.
ISO

§

2255

Mot.”).)

The

United

responded on July 24, 2017.

States

(the

“Government”)

(Resp. of the United States to

Def.’s Mot. to Vacate Sentence, ECF No. 13 (“§ 2255 Resp.”).)
On

June

9,

2005,

Bearden

pled

guilty

to

one

count

of

violating 18 U.S.C. § 922(g) by being a felon in possession of a
firearm.

1

(Order on Change of Plea, ECF No. 83 in 04-20195; 1 see

References to “04-20195” are to filings in United States v.
Bearden, Case No. 2:04-cr-20195 (W.D. Tenn.), and references to
“08-02166” are to filings in Bearden v. United States, Case No.
2:08-cv-02166 (W.D. Tenn.).

also Indictment, ECF No. 7 in 04-20195.)

At his sentencing,

Bearden was determined to be an armed career criminal under the
Armed

Career

Criminal

Act,

18

U.S.C.

§ 924(e)

(the

“ACCA”)

because he had three prior convictions for violent felonies.
(Presentence Investigation Report ¶ 20 in 04-20195 (“PSR”).)

He

had one conviction for aggravated burglary under Tennessee law
(id. ¶

29)

and

two

convictions

Tennessee law (id. ¶¶ 31, 33).
sentenced

Bearden

to

180

No. 87 in 04-20195.)
criminal,

he

would

have

aggravated

robbery

under

On September 19, 2005, the Court

months

years of supervised release.

for

in

prison

followed

by

three

(J. in a Criminal Case 2–3, ECF

Had Bearden not been an armed career
been

subject

sentence of 120 months in prison.

to

a

statutory

maximum

18 U.S.C. § 924(a)(2).

The § 2255 Motion is Bearden’s second § 2255 motion.

His

first was filed in March 2008 and was denied in December 2010.
(See, e.g., Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody, ECF No. 1 in
08-02166; J., ECF No. 15 in 08-02166.)

If a prisoner seeks to

file a second or successive § 2255 motion, the court of appeals
must first certify that the motion contains:
(1)

newly
discovered
evidence
that,
if
proven and viewed in light of the
evidence
as
a
whole,
would
be
sufficient to establish by clear and
convincing evidence that no reasonable
factfinder would have found the movant
guilty of the offense; or
2

(2)

a new rule of constitutional law, made
retroactive
to
cases
on
collateral
review by the Supreme Court, that was
previously unavailable.

28 U.S.C. § 2255(h).
On October 31, 2016, the U.S. Court of Appeals for the
Sixth Circuit, pursuant to motion by Bearden, authorized the
filing of a second § 2255 motion.
16-5933

(6th

Cir.

Oct.

31,

Order 2, In re Bearden, No.

2016).

The

Court

may

consider

Bearden’s second motion.
The

§

2255

Motion

presents

one

ground.

Bearden

argues

that, under Johnson v. United States, 135 S. Ct. 2551 (2015), a
conviction for aggravated burglary under Tennessee law does not
count as a violent felony for purposes of § 924(e).

(§ 2255

Mot. 5; Mem. ISO § 2255 Mot. 4–20.)
The ACCA defines “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that (a) “has as
an element the use, attempted use, or threatened use of physical
force

against

the

person

of

another”

(the

“use-of-force

clause”); (b) “is burglary, arson, or extortion, [or] involves
use

of

explosives”

(c) “otherwise

(the

involves

“enumerated-offenses
conduct

that

presents

clause”);
a

or

serious

potential risk of physical injury to another” (the “residual
clause”).

Id. § 924(e)(2)(B).

3

In Johnson, the Supreme Court held that a sentence imposed
under the residual clause of the ACCA violates due process.
S. Ct. at 2563.

135

In Welch v. United States, the Supreme Court

applied its holding in Johnson retroactively to ACCA cases on
collateral review.

136 S. Ct. 1257, 1268 (2016).

On June 27,

2017, the Sixth Circuit decided United States v. Stitt, holding
that aggravated burglary under Tennessee law no longer qualifies
as a violent felony under § 924(e).

United States v. Stitt, 860

F.3d 854, 857 (6th Cir. 2017).
Following the Stitt decision, on July 10, 2017, Bearden
filed a motion requesting an “immediate ruling” on the § 2255
Motion.

(Def.’s Emergency Mot. Requesting Immediate Ruling on

Mot. to Vacate, Set Aside or Correct Sentence Under 28 U.S.C.
§ 2255, ECF No. 11 (“Emergency Motion”).)

The Court ordered the

Government to respond to the § 2255 Motion.
United States to Respond, ECF No. 12.)

(Order Directing

The Government filed its

§ 2255 Response on July 24, 2017.
The § 2255 Response states that the Government “agrees that
under circuit case law, Bearden is entitled to relief from his
sentence.”

(Id. at 1.)

The Government also states that, “[i]f

the Court agrees . . . , it should vacate Bearden’s sentence and
resentence

him

to

supervised release.”

time

served,

(Id.)

4

with

a

three-year

period

of

The

Stitt

court

has

not

yet

issued

a

mandate.

The

Government contends that “Stitt was wrongly decided” and that
“it is quite possible the Supreme Court will review the matter
‘soon.’”

(Id. at 3 (quoting Stitt, 2017 WL 2766326, at *10–11

(Boggs, J., concurring).)
stay

of

the

issuance

of

Although the Government may seek a
the

mandate

so

that

it

may

file

a

petition for writ of certiorari in the U.S. Supreme Court, this
Court should not defer ruling on Bearden’s § 2255 request.
decision

from

which

an

appeal

is

pending

in

a

higher

“A

court

should be followed, on the principle of stare decisis, until it
is reversed.”

Bryan A. Garner et al., The Law of Judicial

Precedent 258 (2016).

For now, Stitt is binding on this Court.

After Johnson and Stitt, Bearden no longer qualifies as an
armed career criminal under the ACCA.
relief

under

Johnson.

The

§ 2255

Bearden is entitled to

Motion

is GRANTED. 2

The

sentence in Criminal Case No. 04-20195 is VACATED.
The Court in its discretion may correct a sentence without
requiring
§ 2255(c).

the

of

the

prisoner.

See

28

U.S.C.

Bearden has already served more than 120 months in

prison –– the
violation.

production

maximum

stautory

18 U.S.C. § 924(a)(2).

2

sentence

for

a

§

922(g)

The Government agrees that a

Because the Court is granting the § 2255 Motion, the Emergency
Motion is DENIED as moot, as is Bearden’s Motion for Leave to
File Motion Under § 2255 and Hold in Abeyance Pending Decision
on § 2244 Motion in Order to Preserve Johnson Claim, ECF No. 5.
5

time-served sentence is appropriate.

Bearden is sentenced to

time served, to be followed by a three-year period of supervised
release.

All other terms and conditions the Court imposed in

its Judgment in Criminal Case No. 04-20195 are reimposed.
So ordered this 26th day of July, 2017.

/s/_Samuel H. Mays, Jr.
_
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

6