Bearden v. United States of America
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
UNITED STATES OF AMERICA,
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.
responded on July 24, 2017.
(Resp. of the United States to
Def.’s Mot. to Vacate Sentence, ECF No. 13 (“§ 2255 Resp.”).)
violating 18 U.S.C. § 922(g) by being a felon in possession of a
(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
because he had three prior convictions for violent felonies.
(Presentence Investigation Report ¶ 20 in 04-20195 (“PSR”).)
had one conviction for aggravated burglary under Tennessee law
Tennessee law (id. ¶¶ 31, 33).
No. 87 in 04-20195.)
On September 19, 2005, the Court
years of supervised release.
(J. in a Criminal Case 2–3, ECF
Had Bearden not been an armed career
sentence of 120 months in prison.
18 U.S.C. § 924(a)(2).
The § 2255 Motion is Bearden’s second § 2255 motion.
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:
proven and viewed in light of the
sufficient to establish by clear and
convincing evidence that no reasonable
factfinder would have found the movant
guilty of the offense; or
a new rule of constitutional law, made
review by the Supreme Court, that was
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.
Order 2, In re Bearden, No.
Bearden’s second motion.
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).
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
clause”); (b) “is burglary, arson, or extortion, [or] involves
potential risk of physical injury to another” (the “residual
Id. § 924(e)(2)(B).
In Johnson, the Supreme Court held that a sentence imposed
under the residual clause of the ACCA violates due process.
S. Ct. at 2563.
In Welch v. United States, the Supreme Court
applied its holding in Johnson retroactively to ACCA cases on
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
(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.)
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
(Id. at 1.)
The Government also states that, “[i]f
the Court agrees . . . , it should vacate Bearden’s sentence and
Government contends that “Stitt was wrongly decided” and that
“it is quite possible the Supreme Court will review the matter
(Id. at 3 (quoting Stitt, 2017 WL 2766326, at *10–11
(Boggs, J., concurring).)
Although the Government may seek a
petition for writ of certiorari in the U.S. Supreme Court, this
Court should not defer ruling on Bearden’s § 2255 request.
should be followed, on the principle of stare decisis, until it
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.
Bearden is entitled to
is GRANTED. 2
sentence in Criminal Case No. 04-20195 is VACATED.
The Court in its discretion may correct a sentence without
Bearden has already served more than 120 months in
prison –– the
18 U.S.C. § 924(a)(2).
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.
time-served sentence is appropriate.
Bearden is sentenced to
time served, to be followed by a three-year period of supervised
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?