Mitchell v. United States of America

Filing 14

ORDER denying 9 Motion for Disclosure; denying 10 Motion to Dismiss for Failure to State a Claim; denying 11 Motion to Dismiss; denying 12 Motion ; denying 13 Motion. The Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. Se ction 2255 is GRANTED. The Judgment in Criminal Case No. 2:99-cr-20272-JTF-1 is VACATED. The Defendant 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 are reimposed. This order shall take effect 10 days from entry. Signed by Judge Samuel H. Mays, Jr on 07/05/2017. (Mays, Samuel)

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

STEPHEN MURRAY MITCHELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Cv. No. 17-02341
Cr. No. 99-20272

ORDER

Before the Court is Stephen Murray Mitchell’s pro se second
or successive motion seeking to vacate, set aside, or correct
his

sentence

Motion”).

under

28

U.S.C.

§ 2255

(the

(17-02341: ECF No. 1-1 at 3.1)

“Johnson

§ 2255

Mitchell challenges

his sentence in Criminal Case No. 99-20272,2 seeking relief under
Johnson v. United States, 135 S. Ct. 2551 (2015) (“Johnson”).
The United States (the “Government”) has responded.
ECF No. 6 at 22.)
at 69.)
reply.

Mitchell has replied.

(17-02341:

(17-02341: ECF No. 7

With leave of Court, Mitchell filed a supplemental
(17-02341: ECF No. 8 at 96; see ECF No. 8-3 at 102.)

1

References to “17-02341” are to filings in Mitchell v. United
States, Case No. 2:17-cv-02341-SHM-tmp (W.D. Tenn.).
Unless
otherwise noted, all pin cites for record citations are to the
“PageID” page number.
2

References to “99-20272” are to filings in United States v.
Mitchell, Case No. 2:99-cr-20272-JTF-1 (W.D. Tenn.).

Also

before

following

the

motions:

Court

in

Case

(1) Mitchell’s

No.

17-02341

“Motion

for

are

the

Disclosure

&

Discovery” (the “17-02341 Motion for Discovery”); (2) Mitchell’s
“Motion

to

Dismiss

for

Failure

to

State

a

Claim

Under

Fed.

Civ/Crm. R. 12(b)(6)” (the “17-02341 First Motion to Dismiss”);
(3) Mitchell’s “Motion for Dismissal of Action” (the “17-02341
Second Motion to Dismiss”); (4) Mitchell’s “Motion to Modify the
Record” (the “17-02341 Motion to Modify”); and (5) Mitchell’s
“Motion to Appoint Special Master, & Motion to Appoint Special
Prosecutor, to Address Pretrial & Postrial Matters that Cannot
Be Effectively & Timely Addressed by Judge Samuel H. Mays, Jr.;
and to Investigate & Prosecute Criminal Conduct Surrounding the
Arrest

&

Prosecution

of

Petitioner

Stephen

Murray

Mitchell,

Pursuant to 28 U.S.C.S. §§ 593 & 626” (the “17-02341 Motion to
Appoint”).

(17-02341: ECF No. 9 at 103; ECF No. 10 at 105; ECF

No. 11 at 109; ECF No. 12 at 140; ECF No. 13 at 143.)3
Also

before

following motions:
No.

99-20272”

the

Court

in

(1) Mitchell’s

(the

“99-20272

Case

No.

99-20272

are

the

“Motion to Dismiss Judgment
First

Motion

to

Dismiss”);

(2) Mitchell’s “Motion for Leave to Amend Pleading in Order to
Request

Time

Served”

(the

“99-20272

3

Motion

to

Amend”);

As discussed below, several of the filings and motions docketed
in Case No. 17-02341 were originally docketed in Case No. 1502485.
(17-02341: see ECF No. 5 at 17.)
References to “1502485” are to filings in Mitchell v. United States, Case No.
2:15-cv-02485-SHM-tmp (W.D. Tenn.).
2

(3) Mitchell’s “Motion Under Fed. Crim. Rule 36” (the “99-20272
Motion Under Rule 36”); (4) Mitchell’s “Motion for Bond Pending
Sentence, and in the Alternative, Motion for Emergency Sentence
Hearing”

(the

“99-20272

First

Motion

for

Hearing”);

(5) Mitchell’s “Motion to Dismiss for Failure to State a Claim
Under Fed. Civ/Crm. R. 12(b)(6)” (the “99-20272 Second Motion to
Dismiss”); (6) Mitchell’s “Motion for Dismissal of Action” (the
“99-20272 Third Motion to Dismiss”); and (7) Mitchell’s “Motion
for Bond Pending Sentence, and in the Alternative, Motion for
Emergency

Sentence

Hearing”).

Hearing”

(the

“99-20272

Second

Motion

for

(99-20272: ECF No. 205 at 121; ECF No. 206 at 274;

ECF No. 209 at 358; ECF No. 211 at 378; ECF No. 213 at 386; ECF
No. 214 at 391; ECF No. 215 at 422.)
For the following reasons, the Johnson § 2255 Motion is
GRANTED.

The 17-02341 Motion to Modify and the 17-02341 Motion

to Appoint are DENIED.

The 17-02341 Motion for Discovery, the

17-02341 First Motion to Dismiss, the 17-02341 Second Motion to
Dismiss,

the

99-20272

First

Motion

to

Dismiss,

the

99-20272

Motion to Amend, the 99-20272 Motion Under Rule 36, the 99-20272
First Motion for Hearing, the 99-20272 Second Motion to Dismiss,
the 99-20272 Third Motion to Dismiss, and the 99-20272 Second
Motion for Hearing are DENIED as moot.

3

I.

Background
A.

Case No. 99-20272

Following a jury trial, on December 15, 2000, Mitchell was
convicted

of

being

a

felon

in

possession

violation of 18 U.S.C. § 922(g).

of

ammunition,

in

(99-20272: ECF No. 124 at 74;

ECF No. 143 at 83.)
On January 30, 2001, the United States Probation Office
prepared a Presentence Investigation Report (the “PSR”).
at

1.)

The

range

PSR

pursuant

to

calculated
the

Mitchell’s

2000

edition

guidelines
of

the

(PSR

sentencing

United

States

Sentencing Commission Guidelines Manual (the “U.S.S.G.”).

(Id.

¶ 11 at 5.)
Mitchell was designated an armed career criminal under the
Armed
(Id.

Career
¶

19

predicate

at

Criminal
6.)

Act,
The

convictions

in

18

PSR

U.S.C.

§ 924(e)

identified

Mitchell’s

¶¶ 29-31, 35-36 at 9-11, 13-14.)
was 235-293 months in prison.

at

criminal

(the

least

“ACCA”).

five

ACCA-

history.

(Id.

Mitchell’s guidelines range

(Id. ¶ 72 at 26.)

statutory minimum sentence was 180 months.

Mitchell’s

(Id. ¶ 71 at 26

(citing 18 U.S.C. § 924(e)).)
On

July

26,

2001,

the

Court

sentenced

Mitchell

to

250

months in prison, followed by three years’ supervised release.
(99-20272: ECF No. 142.)
2001.

Judgment was entered on August 1,

(99-20272: ECF No. 143 at 83.)
4

Mitchell appealed, and the Court of Appeals for the Sixth
Circuit

affirmed

on

October

21,

2002.

United

States

v.

Mitchell, 48 F. App’x 955 (6th Cir. 2002).
B.

Case No. 03-02753

On October
vacate,

set

8, 2003, Mitchell filed a motion seeking to

aside,

or

correct

his

sentence

under

28

U.S.C.

(03-02753: ECF No. 1.4)

On March 25, 2005, the Court

denied Mitchell’s § 2255 motion.

(03-02753: ECF No. 13 at 12.)

Among

contended

§ 2255.

other

grounds,

Mitchell

exceeded the statutory maximum.
rejected

that

procedurally

argument,

his

sentence

(See id. at 3.)

finding

that

(Id.

defaulted.

that

11-12.)

at

Mitchell’s

The Court
claim

Mitchell

was

filed

a

motion for reconsideration, which was denied on May 17, 2005.
(03-02753: ECF No. 16 at 17.)

Following entry of judgment,

Mitchell filed a notice of appeal, and the Court of Appeals
denied

a

certificate

of

appealability

on

February

21,

2006.

Mitchell v. United States, No. 05-6005 (6th Cir. Feb. 21, 2006),
cert. denied, 549 U.S. 1012 (2006).
C.

Case No. 08-02528

On August 6, 2008, Mitchell filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241.

4

(08-02528: ECF No. 1 at

References to “03-02753” are to filings in Mitchell v. United
States, Case No. 2:03-cv-02753-BBD-dkv (W.D. Tenn.).
5

1.5)

On March 11, 2009, the Court denied Mitchell’s § 2241

petition.
Mitchell

(08-02528: ECF No. 4 at 57.)
challenged

his

Among other grounds,

armed-career-criminal

designation

and

his status as a convicted felon at the time of the indictment in
Criminal Case No. 99-20272.

(Id. at 60.)

The Court rejected

Mitchell’s claims because, inter alia, (1) they were not claims
properly raised in a § 2241 petition and (2) Mitchell made no
valid argument that he was actually innocent of his 18 U.S.C.
§ 922(g) offense.
Mitchell

(Id. at 63-64.)

appealed,

and

the

judgment on January 26, 2010.

Following entry of judgment,

Court

of

Appeals

affirmed

the

Mitchell v. Castillo, No. 09-5545

(6th Cir. Jan. 26, 2010), cert. denied, 562 U.S. 807 (2010).
D.

Case No. 10-02958

On December 30, 2010, Mitchell filed a “Pro Se Motion to
Nullify Order for Want of Jurisdiction,” docketed as a petition
for a writ of habeas corpus under 28 U.S.C. § 2241.

(10-02958:

ECF No. 1 at 1.6)

On May 27, 2011, the Court denied Mitchell’s

§ 2241 petition.

(10-02958: ECF No. 9 at 59.)

Among other

grounds, Mitchell argued that he was erroneously sentenced as an
armed-career-criminal

because

three

of

the

prior

Tennessee

burglary convictions on which the sentencing court had relied
5

References to “08-02528” are to filings in Mitchell
Castillo, Case No. 2:08-cv-02528-BBD-egb (W.D. Tenn.).

v.

6

v.

References to “10-02958” are to filings in Mitchell
Castillo, Case No. 2:10-cv-02958-SMH-cgc (W.D. Tenn.).
6

did not qualify as ACCA predicates.

(10-02958: ECF No. 8 at

33.)
The Court rejected Mitchell’s claims because (1) they were
not claims properly raised in a § 2241 petition and (2) Mitchell
made no valid argument that he was actually innocent of his 18
U.S.C. § 922(g) offense.
alternative
Mitchell

basis

had

criminal.

been

for

(10-02958: ECF No. 9 at 55-56.)
its

decision,

sentenced

(Id. at 56.)

the

properly

as

Court
an

As an

opined
armed

that

career

The Court opined that Mitchell’s two

Tennessee convictions for burglary of a building were properly
counted as predicate offenses.
opined

that

Mitchell’s

(Id. at 58-59.)

Tennessee

third

The Court also

degree

burglary

conviction was properly counted, explaining:
Under the law at the time, “[b]urglary in the third
degree is the breaking and entering into a business
house, outhouse, or any other house of another, other
than dwelling house, with the intent to commit a
felony.”
Tenn. Code Ann. § 39-3-404(a)(1) (1986).
That definition is similar to the definition of
burglary of a building and is, for the same reasons, a
generic burglary capable of constituting a violent
felony under the ACCA.
(Id. at 59.)
Following

entry

of

judgment,

Mitchell

moved

for

reconsideration under Rule 59(e) of the Federal Rules of Civil
Procedure, which the Court denied.
136.)

(10-02958: ECF No. 15 at

Mitchell appealed the judgment, and the Court of Appeals

affirmed on January 26, 2010, deciding that Mitchell’s claims
7

were not properly raised in a § 2241 petition.
United

States,

denied,

133

S.

No.
Ct.

11-5790
2010

(6th

Cir.

(2013).

Oct.

The

Mitchell v.

12,

Supreme

2012),

cert.

Court’s

order

denying certiorari stated, “As petitioner has repeatedly abused
this Court’s process, the Clerk is directed not to accept any
further petitions in noncriminal matters from petitioner unless
the docketing fee required by Rule 38(a) is paid and petition
submitted in compliance with Rule 33.1.”

Mitchell, 133 S. Ct.

at 2010.
E.

Case No. 12-02930

On October 23, 2012, Mitchell filed a “Motion Under 28
U.S.C. § 1331” seeking to “nullify” his judgment in Criminal
Case. No. 99-20272.7
moved

to

amend

his

(12-02930: ECF No. 1 at 1.8)
motion

to

request

that

his

Mitchell

sentence

be

corrected to time served under Rule 35(a) of the Federal Rules
of Criminal Procedure.

(12-02930: ECF No. 9 at 99.)

Mitchell

sought relief under Rule 35(a) on the ground that five of the
prior Tennessee convictions on which the sentencing court had
relied in sentencing Mitchell as an armed career criminal -- his
three

burglary

convictions

and

two

aggravated

assault

7

Making substantially similar arguments, on January 8, 2013,
Mitchell filed the 99-20272 First Motion to Dismiss. (99-20272:
ECF No. 205 at 121.)
8

References to “12-02930” are to filings in Mitchell v. United
States, Case No. 2:12-cv-02930-SMH-tmp (W.D. Tenn.).
8

convictions -- did not qualify as ACCA predicates.9

(Id. at 99-

100.)
On January 2, 2014, the Court denied Mitchell’s “Motion
Under 28 U.S.C. § 1331” as amended.
144-45.)

The Court

properly raised.

(12-02930: ECF No. 10 at

decided that Mitchell’s claims

(Id.)

Following entry of judgment, Mitchell

moved for reconsideration, which the Court denied.
ECF No. 15 at 166.)
Court

of

Appeals

were not

(12-02930:

Mitchell appealed the judgment, and the

affirmed

on

April

2,

2015,

Mitchell’s claims were not properly raised.10

agreeing

that

Mitchell v. United

States, No. 14-5103 (6th Cir. Apr. 2, 2015).
F.

Case No. 13-02412

On June 12, 2013, Mitchell filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241.
1.11)

(13-02412: ECF No. 1 at

Mitchell argued that the aggravated assault convictions on

which the sentencing court had relied in sentencing him as an
armed career criminal no longer qualified as ACCA predicates
following intervening Supreme Court and Sixth Circuit authority.

9

Making identical arguments, Mitchell contemporaneously filed
the 99-20272 Motion to Amend. (99-20272: ECF No. 206 at 274.)
10

Making arguments similar to those made before the Court of
Appeals (and rejected by the Court of Appeals’ April 2, 2015
opinion), Mitchell contemporaneously filed the 99-20272 Motion
Under Rule 36. (99-20272: ECF No. 209 at 358.)
11

References to “13-02412” are to filings in Mitchell
Stephens, Case No. 2:13-cv-02412-SMH-cgc (W.D. Tenn.).
9

v.

(Id. at 3-4.)

The Court denied the motion on July 10, 2013.

(13-02412:

No.

ECF

3

at

54-55.)

The

Court

decided

that

Mitchell’s claims under § 2241 were not properly raised.
at

54.)

The

Court

explained

that,

even

without

(Id.

the

two

aggravated assault convictions, Mitchell “would still have three
convictions

for

violent

felonies,

which

are,

by

themselves,

sufficient to qualify him as an armed career criminal.”

(Id. at

54-55.)
Following entry of judgment, on July 15, 2013, Mitchell
filed a Motion for Leave for Supplemental Pleading, raising new
arguments based on Descamps v. United States, 133 S. Ct. 2276
(2013).

(13-02412: ECF No. 5 at 58.)

motion because it was

not timely

The Court denied the

and because Mitchell’s new

arguments and authority did not undermine the Court’s conclusion
that Mitchell’s claims were not properly raised in a § 2241
petition.

(13-02412: ECF No. 6 at 63.)

Mitchell did not appeal

the judgment.
G.

Case No. 13-5977

On July 23, 2013, Mitchell moved the Court of Appeals for
an

order

authorizing

this

Court

to

consider

successive motion under 28 U.S.C. § 2255.
his

armed-career-criminal

status,

arguing

a

second

or

Mitchell challenged
that,

after

the

Supreme Court’s decision in Begay v. United States, 553 U.S. 137
(2008),

Mitchell’s

aggravated

assault
10

convictions

no

longer

qualified as ACCA predicates and that, after the Supreme Court’s
decision in Descamps, Mitchell’s burglary convictions no longer
qualified.
that

The Court of Appeals denied the motion, explaining

Mitchell

because

the

had

not

Supreme

“establish[ed]

Court

ha[d]

retroactive on collateral review.”

not

a

prima

made

facie

Begay

or

showing
Descamps

In re Mitchell, No. 13-5977,

slip op. at 2 (6th Cir. Jan. 15, 2014).
H.

Subsequent Proceedings

On July 23, 2015, Mitchell filed a “Writ of Habeas Corpus
Under 28 U.S.C. § 2241 and/or Writ of Scire Facias Under 28
U.S.C.

§ 1367(a),”

which

was

(15-02485: ECF No. 1 at 1.)

docketed

in

Case

No.

On November 4, 2015, Mitchell filed

a “Motion to Withdraw 28 U.S.C. § 2241 Petition.”
ECF No. 6 at 54.)

15-02485.

(15-02485:

The Court granted the motion, dismissed Case

No. 15-02485, and entered judgment.

(15-02485: ECF No. 7 at 56;

ECF No. 8 at 57.)
On October 23, 2015, Shortly before filing his motion to
withdraw, Mitchell again moved the Court of Appeals for an order
authorizing this Court to consider a second or successive motion
under 28 U.S.C. § 2255.

Mitchell sought to challenge his ACCA-

enhanced sentence under Johnson.

The Court of Appeals granted

the motion on June 23, 2016, explaining, “Because the Supreme
Court has held that Johnson announced a new substantive rule of
constitutional law that is categorically retroactive to cases on
11

collateral review, Welch v. United States, 136 S. Ct. 1257, 1268
(2016),

Mitchell

has

entitled to relief.”

made

a

prima

facie

showing

that

he

is

In re Mitchell, No. 15-6178, slip op. at 1

(6th Cir. June 23, 2016).
Subsequent filings related to Mitchell’s Johnson challenge
were docketed in Case No. 15-02485.

On August 5, 2016, this

Court ordered the Government to respond to Mitchell’s Johnson
challenge.

(15-02485:

ECF

No.

10

at

58.)

The

Government

responded on August 22, 2016, contending that Mitchell is not
entitled to relief under Johnson.

(15-02485: ECF No. 14 at 69.)

On August 29, 2016, Mitchell filed a “Traverse Under 28 U.S.C.
§ 2248,” which the Court construes as a reply.
No. 15 at 116.)

(15-02485: ECF

On August 30, 2016, Mitchell filed a “Motion to

Amend Traverse Under 28 U.S.C. § 2255,” which the Court granted
and construes as a supplemental reply.
143; ECF No. 19 at 155.)
reply,

and

Mitchell’s

(15-02485: ECF No. 16 at

The Government’s response, Mitchell’s
supplemental

docketed in Case No. 17-02341.

reply

subsequently

were

(17-02341: ECF No. 6 at 22; ECF

No. 7 at 69; ECF No. 8 at 96.)
Mitchell filed several motions in Case No. 15-02485 that
subsequently were docketed in Case No. 17-02341.
filed

on

September

1,

2016,

Mitchell’s

17-02341

Originally
Motion

for

Discovery seeks a court order directing the Assistant United
States Attorney to disclose to Mitchell records related to an
12

“October

19,

1999,

driving

while

license

crime/charge, Shelby County Case No. 99155572.”
No. 17 at 149; 17-02341: ECF No. 9 at 103.)

was

suspended

(15-02485: ECF

Originally filed on

September 1, 2016, Mitchell’s 17-02341 First Motion to Dismiss
asks the Court to dismiss the judgment in Criminal Case No. 9920272 under “Fed. Civ/Crm. R. 12(b)(6).”

(15-02485: ECF No. 18

at 151; 17-02341: ECF No. 10 at 105.)

Originally filed on

October 19, 2016, Mitchell’s 17-02341 Second Motion to Dismiss
asks the Court to dismiss the judgment in Criminal Case No. 9920272 on the ground that the Court may not rely on the records
of Mitchell’s prior convictions provided by the Government for
purposes

of

challenge.
at 109.)

the

Court’s

assessment

of

Mitchell’s

Johnson

(15-02485: ECF No. 20 at 156; 17-02341: ECF No. 11
Originally filed on May 25, 2017, Mitchell’s 17-02341

Motion to Modify is a motion directed to the Court of Appeals
related to a petition for writ of mandamus Mitchell filed in
that court on May 15, 2017.

(15-02485: ECF No. 26 at 305; 17-

02341: ECF No. 12 at 140.)
Mitchell has filed the following motions in Case No. 9920272.

On July 18, 2016, Mitchell filed the 99-20272 First

Motion for Hearing.
motion,

Mitchell

Court’s

ruling

alternative,

seeks
on

an

(99-20272: ECF No. 211 at 380.)

the

to

be

released

Johnson

“emergency

§ 2255
sentence

13

on

bond

Motion

In that

pending
and,

hearing”

in
for

the
the
the

adjudication

of

Mitchell’s

Johnson

challenge.

(Id.)

On

September 1, 2016, Mitchell filed the 99-20272 Second Motion to
Dismiss.

(99-20272: ECF No. 213 at 386.)

In that motion,

Mitchell seeks substantially the same relief he seeks in the 1702341 First Motion to Dismiss.

(Id.)

On October 19, 2016,

Mitchell filed the 99-20272 Third Motion to Dismiss.
ECF

No.

214

at

391.)

In

that

motion,

(99-20272:

Mitchell

seeks

substantially the same relief as he seeks in the 17-02341 Second
Motion to Dismiss.

(Id.)

On February 22, 2017, Mitchell filed

the 99-20272 Second Motion for Hearing.
at 422.)

(99-20272: ECF No. 215

In that motion, Mitchell seeks substantially the same

relief as he seeks in the 99-20272 First Motion for Hearing and
makes additional arguments in support of his Johnson challenge.
(Id.)
On May 16, 2017, the Clerk of Court opened Case No. 1702341.

On May 30, 2017, the Court directed the Clerk to docket

in Case No. 17-02341 filings and motions related to Mitchell’s
Johnson challenge that were originally filed in Case No. 1502485.

(17-02341: ECF No. 5 at 17.)12

The Court decided that,

because Case No. 15-02485 had been closed following entry of
judgment,

it

would

not

be

appropriate

12

to

resolve

Mitchell’s

On June 19, 2017, after the Clerk had docketed those filings
and motions, Mitchell filed the 17-02341 Motion to Appoint.
(17-02341: ECF No. 13 at 143.) That motion seeks various forms
of relief pursuant to 28 U.S.C. §§ 593, 626, and 753(f), and 42
U.S.C. §§ 1985, 1986, and 1987.
14

Johnson

challenge

in

that

case.

The

Court

decided

that

Mitchell’s Johnson challenge should be decided in Case No. 1702341.
II.

Mitchell’s Johnson § 2255 Motion is ripe for review.

Standard of Review
Mitchell

seeks

relief

under

28

U.S.C.

§ 2255.

Under

§ 2255(a),
[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States . . . or that the sentence was in
excess of the maximum authorized by law . . . may move
the court which imposed the sentence to vacate, set
aside or correct the sentence.
28 U.S.C. § 2255(a).
“To succeed on a § 2255 motion, a prisoner in custody must
show ‘(1) an error of constitutional magnitude; (2) a sentence
imposed outside the statutory limits; or (3) an error of fact or
law that was so fundamental as to render the entire proceeding
invalid.’”

McPhearson v. United States, 675 F.3d 553, 558–59

(6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491,
496–97 (6th Cir. 2003)).
A prisoner must file his § 2255 motion within one year of
the latest of:
(1)

the date on which
becomes final;

the

(2)

the date on which the impediment to making a
motion
created
by
governmental
action
in
15

judgment

of

conviction

violation of the Constitution or laws of the
United States is removed, if the movant was
prevented
from
making
a
motion
by
such
governmental action;
(3)

the date on which the right asserted was
initially recognized by the Supreme Court, if
that right has been newly recognized by the
Supreme Court and made retroactively applicable
to cases on collateral review; or

(4)

the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.

28 U.S.C. § 2255(f).
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)

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).
A § 2255 motion is not a substitute for a direct appeal.
Ray

v.

United

“[C]laims

not

States,

721

raised

on

F.3d
direct

758,

761

appeal,”

(6th

Cir.

which

2013).

are

thus

procedurally defaulted, “may not be raised on collateral review
unless the petitioner shows cause and prejudice.”

Massaro v.

United States, 538 U.S. 500, 504 (2003) (citing cases);
16

see

also, e.g., Jones v. Bell, 801 F.3d 556, 562 (6th Cir. 2015)
(quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)).
In

the

procedural-default

“‘ordinarily

turn[s]

on

context,

the

whether . . . some

cause

inquiry

objective

factor

external to the defense impeded counsel’s efforts’” to raise the
issue on direct appeal.

Ambrose v. Booker, 684 F.3d 638, 645

(6th Cir. 2012) (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)) (alteration and ellipses in Ambrose); see also United
States

v.

Frady,

456

U.S.

152,

167–68

(1982)

(cause-inquiry

standards in § 2254 cases apply to § 2255 cases).
to

exist,

an

interference

‘external
or

the

impediment,

reasonable

whether

it

unavailability

“[F]or cause
be

of

government
the

factual

basis for the claim, must have prevented petitioner from raising
the claim.’”

Bates v. United States, 473 F. App’x 446, 448–49

(6th Cir. 2012) (quoting McCleskey v. Zant, 499 U.S. 467, 497
(1991))

(emphasis

removed).

To

show

prejudice

to

excuse

default, a petitioner must show “‘actual prejudice’ resulting
from the errors of which he complains.”

Frady, 456 U.S. at 168;

see also Ambrose, 684 F.3d at 649.
Alternatively,

a

petitioner

review

Bousley v. United States, 523 U.S. 614, 623–24

demonstrate

that,

in

light

actual
of

innocence,

all

17

the

his

a

innocence.”

establish

demonstrating

of

defaulted

“To

by

obtain

procedurally

(1998).

claim

may

“actual

petitioner

evidence,

it

is

must
more

likely than not that no reasonable juror would have convicted
him.”

Id. at 623 (quotation marks omitted) (quoting Schlup v.

Delo, 513 U.S. 298, 327–28 (1995)).
After a petitioner files a § 2255 motion, the Court reviews
it and, “[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion . . . .”

Rules Governing Section 2255 Proceedings for

the U.S. District Courts (“§ 2255 Rules”) at Rule 4(b).

“If the

motion is not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within a
fixed time, or to take other action the judge may order.”
The

§ 2255

response.

movant

is

entitled

Id. at Rule 5(d).

parties

to

provide

motion.

Id. at Rule 7(a).

to

reply

to

the

Id.

government’s

The Court may also direct the

additional

information

relating

to

the

If the district judge addressing the

§ 2255 motion is the same judge who oversaw the trial, the judge
“‘may rely on his or her recollection of the trial’” in denying
the motion.

Christopher v. United States, 605 F. App’x 533, 537

(6th Cir. 2015) (quoting Arredondo v. United States, 178 F.3d
778, 782 (6th Cir. 1999)).

18

III. Analysis
A.

Preliminary Matters

The 99-20272 First Motion to Dismiss, the 99-20272 Motion
to Amend, and the 99-20272 Motion Under Rule 36 raise arguments
and seek relief substantially similar to arguments Mitchell made
and relief he sought in Case No. 12-02930 and on appeal of the
judgment in that action.
have

addressed

and

This Court and the Court of Appeals

rejected

those

relief sought in those motions.

arguments

and

denied

the

The 99-20272 First Motion to

Dismiss, the 99-20272 Motion to Amend, and the 99-20272 Motion
Under Rule 36 are DENIED as moot.
The 17-02341 Motion to Modify is a motion directed to the
Court of Appeals, a copy of which was filed as a motion in this
Court.

This Court does not have jurisdiction to address motions

filed in the Court of Appeals.

The 17-02341 Motion to Modify is

DENIED.
The 17-02341 Motion to Appoint seeks relief that the Court
is without authority to grant in § 2255 proceedings.

The 17-

02341 Motion to Appoint is DENIED.
B.

Basis and Timeliness of § 2255 Motion

Mitchell challenges his sentence based on Johnson, which
provides a new rule of constitutional law made retroactively
applicable to cases on collateral review.
1268.

Welch, 136 S. Ct. at

Johnson was decided on June 26, 2015, and Mitchell filed
19

a motion seeking authorization from the Court of Appeals to file
a

second

or

successive

§

2255

motion

on

November

6,

2015.

Mitchell filed that motion within one year of Johnson.

The

Court of Appeals granted the motion and transferred the case to
this Court.

Mitchell’s Johnson § 2255 Motion is timely.

See 28

U.S.C. §§ 2255(f)(3) and (h).
Mitchell’s

Johnson

§ 2255

Motion

alleges

constitutional

error that resulted in a sentence that now exceeds the statutory
limits applicable to his offense.
559.

See McPhearson, 675 F.3d at

The United States does not argue that Mitchell’s Johnson

challenge is procedurally defaulted.

Mitchell did not challenge

his ACCA sentencing enhancement on direct appeal.
have

considered

procedural-default

challenges

Courts that

to

prisoners’

Johnson-based § 2255 motions have consistently ruled that cause
and

prejudice

excuse

Johnson context.

a

prisoner’s

procedural

default

in

the

E.g., Duhart v. United States, No. 08-60309-

CR, 2016 WL 4720424, at *4 (S.D. Fla. Sept. 9, 2016) (“Where the
Supreme Court explicitly overrules well-settled precedent and
gives

retroactive

application

to

that

new

rule

after

a

litigant’s direct appeal, ‘[b]y definition’ a claim based on
that new rule cannot be said to have been reasonably available
to counsel at the time of the direct appeal.” (quoting Reed v.
Ross, 468 U.S. 1, 17 (1984))).

20

The Court has previously denied petitions filed by Mitchell
seeking to challenge his status as an armed career criminal and
his

enhanced

sentence

under

the

ACCA.

In

each

of

those

proceedings, the Court decided that Mitchell’s claims were not
properly before the Court.

As alternative grounds for those

decisions, the Court opined that, even if Mitchell’s claims were
properly

before

merits.

Those decisions were before Johnson, Welch, and other

decisions

that

the

are

Court,

binding

those

on

successive § 2255 proceedings.

the

claims

Court

would

in

fail

these

on

second

the

or

The Government does not contend

that this Court’s prior decisions preclude review on the merits
of Mitchell’s Johnson § 2255 Motion.
C.

ACCA’s “Violent Felony” Framework

Under

the

ACCA,

a

defendant

convicted

under

18

U.S.C.

§ 922(g) who has three prior convictions for violent felonies or
serious drug offenses is subject to a mandatory minimum sentence
of 180 months in prison.

18 U.S.C. § 924(e).

Without the prior

qualifying convictions, a defendant convicted under § 922(g) is
subject to a statutory maximum sentence of 120 months in prison.
18 U.S.C. § 924(a)(2).
The ACCA defines “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that (1) “has as
an element the use, attempted use, or threatened use of physical
force

against

the

person

of
21

another”

(the

“use-of-force

clause”); (2) “is burglary, arson, or extortion, [or] involves
use

of

explosives”

(3) “otherwise

(the

involves

“enumerated-offenses
conduct

that

clause”);

presents

a

or

serious

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

18 U.S.C. § 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.

135

In Welch, the Supreme Court applied its holding

in Johnson retroactively to ACCA cases on collateral review.
136 S. Ct. at 1268; see also In re Watkins, 810 F.3d 375, 383-84
(6th Cir. 2015) (same).
Johnson does not question sentencing enhancements under the
ACCA’s use-of-force or enumerated-offenses clauses.
135 S. Ct. at 2563.
[a

defendant’s]

constitutes
clause.”
2015).

a

Johnson,

“The government accordingly cannot enhance

sentence

violent

based

felony

on

a

pursuant

prior
only

conviction
to

the

that

residual

United States v. Priddy, 808 F.3d 676, 683 (6th Cir.
“But a defendant can still receive an ACCA-enhanced

sentence

based

on

the

statute’s

enumerated-offense[s] clause.”
“When

determining

use-of-force

clause

or

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

22

759, 762 (6th Cir. 2013) (quotation marks omitted).13

Using that

approach, courts “look[] only to the statutory definitions of
the prior offenses, and not to the particular facts underlying
those convictions.”

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.’”
divisible

must

ask

determining

Covington, 738 F.3d at 763.

whether
if

the

constitutes . . . a

the

statute

statute

lists

at

issue

‘alternative

Id. (quoting Descamps, 133 S. Ct. at 2293).

statute,

listing

potential

offense

is

elements

in

“[A]
the

alternative, renders opaque which element played a part in the
defendant’s conviction.”
If

a

statute

is

Descamps, 133 S. Ct. at 2283.
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

13

Covington addresses the definition of “crime of violence” in
U.S.S.G. § 4B1.2(a). 738 F.3d at 761-62. Guidelines decisions
apply to ACCA cases because, “[w]hether a conviction is a
‘violent felony’ under the ACCA is analyzed in the same way as
whether a conviction is a ‘crime of violence’ under . . .
§ 4B1.2(a).”
United States v. McMurray, 653 F.3d 367, 371 n.1
(6th Cir. 2011).
23

basis of the defendant’s prior conviction.”14

Id. at 2283-84.

“Where the defendant has pled guilty, these so-called Shepard
documents

may

include

the

‘charging

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).
The Supreme Court has clarified that a court should use the
modified

categorical

multiple

elements

approach

only

disjunctively,”

14

when
not

a

when

statute
it

“lists

“enumerates

In United States v. Mitchell, the Sixth Circuit explained that
“[a] divisible statute is necessary but not sufficient for
application of the modified categorical approach.”
743 F.3d
1054, 1063 (6th Cir. 2014).
The court further explained, “We
make explicit a step in the analysis that the Covington panel
alluded to implicitly: if a statute is divisible -- in that it
sets out one or more elements of the offense in the
alternative -- at least one, but not all of those alternative
elements must depart from: (1) the elements of the generic ACCA
crime (if the conviction is based on an enumerated offense); or
(2) the definitions provided in . . . the ‘use of physical
force’ clause . . . (if the conviction is based on a nonenumerated offense).”
Id. at 1065.
The comments in Mitchell
appear to be dicta.
The Court need not determine whether this
portion of Mitchell controls because, as discussed below, each
of the Tennessee third degree burglary and aggravated assault
statutes under which Mitchell was convicted included at least
one alternative element that departed from the definition in the
ACCA’s use-of-force and enumerated-offenses clauses.
24

various factual means of committing a single element.”
v. United States, 136 S. Ct. 2243, 2249, 2256 (2016).

Mathis
A “court

faced with an alternatively phrased statute is thus to determine
whether its listed items are elements or means.”

Id. at 2256.

It can do so by examining state law to determine (1) whether “a
state

court

(2) whether
issue.”
“carry

decision
“the

Id.

definitively

statute

on

its

answers

the

question,”

face . . . resolve[s]

or
the

Alternatively listed items are elements where they

different

punishments”

or

where

the

statute

“itself

identif[ies]” them as “things [that] must be charged.”

Id.

They are means where the “statutory list is drafted to offer
‘illustrative examples’” only.

Id.

“[I]f state law fails to

provide clear answers,” a court may take “a peek at the record
documents” of the prior conviction “for the sole and limited
purpose of determining whether the listed items are elements of
the offense.”

Id. (alterations and quotation marks omitted).

If the listed items are “means, the court has no call to decide
which of the statutory alternatives was at issue in the earlier
prosecution.”

Id.

After having determined which of a statute’s alternative
elements formed the basis of the defendant’s prior conviction,
or after having determined that the statute is indivisible, the
second step in the categorical approach requires the court to

25

“ask whether the offense the statute describes, as a category,
is a [violent felony].”

Covington, 738 F.3d at 763.

“When determining whether a particular offense qualifies as
a ‘violent felony’ under the use-of-force clause, [a court is]
limited to determining whether that offense ‘has as an element
the use, attempted use, or threatened use of physical force
against

the

person

of

another.’”

Priddy,

(quoting 18 U.S.C. § 924(e)(2)(B)(i)).

808

F.3d

at

685

“The force involved must

be ‘violent force -- that is, force capable of causing physical
pain or injury to another person.’”

Id. (quoting Johnson v.

United States, 559 U.S. 133, 140 (2010)).
When determining whether a particular offense qualifies as
a

violent

felony

under

the

enumerated-offenses

clause,

the

“question is whether the elements of the prior conviction are
equivalent to the elements of the generic definition of one of
the

offenses

enumerated

Covington, 738 F.3d at 764.

in . . . [§] 924(e)(2)(B)(ii).”
“The prior conviction qualifies as

an ACCA predicate only if the statute’s elements are the same
as, or narrower than, those of the generic offense.”

Descamps,

133 S. Ct. at 2281.
“If the offense ‘sweeps more broadly’ and ‘criminalizes a
broader swath of conduct’ than [would] meet these tests, then
the

offense,

as

a

category,

is

26

not

a

[violent

felony].”

Covington, 738 F.3d at 764 (quoting Descamps, 133 S. Ct. at
2281, 2283, 2289-91).
D.

Analysis of Mitchell’s Prior Convictions

Mitchell contends that, after Johnson, the convictions on
which the sentencing court relied in sentencing him as an armed
career criminal

no longer qualify

02341: ECF No. 1-1 at 7-11.)
after

Johnson,

convictions.

Mitchell

as ACCA

predicates.

(17-

The Government contends that, even

has

at

least

(17-02341: ECF No. 6 at 26.)

three

ACCA-predicate

They are: (1) a 1986

Tennessee conviction for aggravated assault; (2) a second 1986
Tennessee

conviction

for

aggravated

assault;

Tennessee conviction for third degree burglary.

and

(3) a

1986

(Id. at 23; see

also PSR ¶¶ 29-31.)
Although

Mitchell’s

PSR

identified

three

other

prior

convictions as violent felonies under the ACCA, the Government
does not rely on those convictions.
Tennessee
Government

conviction
represents

for

The PSR identifies a 1986

kidnapping

that

the

(PSR

offense

¶

31),

conduct

but
for

the
that

conviction occurred on the same occasion as the offense conduct
for Mitchell’s second 1986 aggravated assault conviction.15

15

(17-

The Government requests the opportunity to brief whether the
kidnapping conviction qualifies as a violent felony under the
ACCA should it be outcome-determinative in deciding Mitchell’s
Johnson § 2255 Motion.
As discussed below, because the ACCApredicate status of the kidnapping conviction is not outcomedeterminative here, no further briefing is necessary.
27

02341: ECF No. 6 at 23.)

The PSR also identifies two 1995

Tennessee convictions for burglary of a building (PSR ¶¶ 35-36),
but the Government represents that state-court records confirm
that those convictions were nolle prossed.

(17-02341: ECF No. 6

at 38.)
1.

Tennessee Third Degree Burglary Conviction

At the time of the offense conduct on which Mitchell’s 1986
third

degree

burglary

conviction

was

based,

Tenn.

Code

§ 39-3-404 provided:
(a)(1)

Burglary in the third degree is the breaking
and
entering
into
a
business
house,
outhouse, or any other house of another,
other than dwelling house, with the intent
to commit a felony.

(2)

Every person convicted of this crime, on
first offense, shall be imprisoned in the
penitentiary for not less than three (3)
years nor more than then (10) years.
. . . .

(b)(1)

Any person who, with intent to commit crime,
breaks and enters, either by day or by
night, any building, whether inhabited or
not, and opens or attempts to open any
vault, safe, or other secure place by any
means, shall be punished by imprisonment for
a term of not less than three (3) nor more
than twenty-one (21) years upon conviction
for a first offense, and not less than five
(5) years nor more than twenty-one (21)
years upon conviction for a second or
subsequent offense.
. . . .

28

Ann.

Tenn. Code Ann. § 39-3-404 (1982) (repealed) (additional penalty
provisions omitted).

Section 39-3-404(a)(1) -- the “building

provision” -- criminalized the breaking and entering into a nondwelling

house,

and

§ 39-3-404(b)(1)

--

the

“safecracking

provision” -- criminalized the opening or attempted opening of a
vault, safe, or other secure place following a breaking and
entering into a building.
In United States v. Caruthers, the Sixth Circuit addressed
whether

a

qualified

defendant’s
as

a

violent

prior
felony

conviction
under

under
ACCA’s

the

§ 39-3-404
enumerated-

offenses clause.

458 F.3d 459, 475-76 (6th Cir. 2006).

The

court

that

the

determined

§ 39-3-404

is

“nongeneric

along

‘building or structure’ dimension, as it permitted third-degree
burglary convictions for unlawful entry into coin receptacles
and the like.”
(Tenn.

Id. (citing Fox v. State, 383 S.W.2d 25, 27

1964)).

“criminaliz[ed]
burglary.

a

use

broader

current
swath

terminology,

of

conduct

§ 39-3-404

than”

generic

Descamps, 133 S. Ct. at 2281.

Having
Caruthers

To

determined
court

that

considered

§ 39-3-404
whether

was

the

“nongeneric,”

defendant

the

“actually

committed a generic burglary” as demonstrated by the available
Shepard documents for his § 39-3-404 conviction.
F.3d at 476 (quoting Taylor, 495 U.S. at 600).

Caruthers, 458
Because the

defendant’s indictments showed that “he was actually convicted
29

of

burglarizing

buildings,

even

though

the

statute

permitted

convictions for burglary of non-buildings,” Caruthers held that
the

defendant’s

§ 39-3-404

convictions

were

burglaries” and qualified as ACCA predicates.

for

“generic

Id.

Caruthers was decided before Descamps, in which the Supreme
Court

clarified

[Shepard]

that

documents

not . . . overbroadly,

its

only
but

“decisions
when

a

instead

authorize

statute

review

defines

alternatively.”

of

burglary
Descamps,

133 S. Ct. at 2286.
Following Descamps and Mathis, Mitchell contends that, not
only

is

§ 39-3-404

Caruthers, but

nongeneric

or

also that it is

overbroad,

as

held

by

also indivisible because the

various ways the statute could be violated are different means
of committing the same offense.
72, 74.)
both

(17-02341: see ECF No. 7 at 70-

Mitchell’s argument is that, because § 39-3-404 is

overbroad

and

indivisible

--

the

latter

condition

precluding any examination of Shepard documents -- his § 39-3404 conviction cannot qualify as an ACCA predicate.

(See id.)

The Government argues that § 39-3-404 is divisible because it
contains alternative elements, not means, and that the Court may
examine

Shepard

documents

to

determine

which

elements formed the basis of Mitchell’s conviction.
see ECF No. 6 at 35, 37-38.)

30

alternative
(17-02341:

Section 39-3-404 as a whole is overbroad, as recognized by
Caruthers.
3-404

on

Nevertheless, § 39-3-404 is divisible.
its

face

reflects

a

divisible

Section 39-

structure:

§ 39-3-

404(a)(1) criminalized the burglarizing of buildings other than
dwellings, and § 39-3-404(b)(1) criminalized the burglarizing of
vaults,
Tennessee

safes,
courts

etc.

(otherwise

recognized

known

that

as

safecracking).

§ 39-3-404

criminalized

multiple alternative offenses, not a single offense that could
be committed in multiple ways.

E.g., Englett v. State, No. 01-

C-019103CC00086, 1991 WL 255894, at *2 (Tenn. Crim. App. Dec. 5,
1991) (“As to the burglary and safecracking charges, both of
these offenses were prohibited at that time by Tenn. Code Ann.
§ 39-3-404.”).16

Offenses

under

§§ 39-3-404(a)(1)

also carried different punishments.
404(a)(2)-(4),

(b)(1)-(2).

Both

and

(b)(1)

Tenn. Code. Ann. §§ 39-3-

the

text

of

§ 39-3-404

and

Tennessee case law construing it exhibit Mathis’s hallmarks of
divisibility.

Mathis, 136 S. Ct. at 2256.

16

Although some Tennessee decisions treat the safecracking
provision as a sentencing enhancement, see, e.g., State v.
Lindsay, 637 S.W.2d 886, 890 (Tenn. Crim. App. 1982) (construing
a substantially similar prior version of § 39-3-404), that does
not mean that § 39-3-404 as a whole merely “enumerate[d] various
factual means of committing a single element,” such as a single
“locational element,” Mathis, 136 S. Ct. at 2249-50.
Even if
understood as a sentencing
enhancement, the safecracking
provision “provide[d] for greater punishment if the burglar
open[ed] a vault, safe, or other secure place after entry,”
which assumed that a “burglarious entry” had already occurred.
Lindsay, 637 S.W.2d at 890. Section 39-3-404(b)(1) criminalized
distinct, additional conduct that § 39-3-404(a)(1) did not.
31

Because

§ 39-3-404

is

divisible,

the

Court

may

examine

Shepard documents to determine which of § 39-3-404’s alternative
elements formed the basis of Mitchell’s prior conviction.

See

Descamps, 133 S. Ct. at 2283-84.
Mitchell’s

Shepard

documents

demonstrate

that

he

was

convicted under § 39-3-404(a)(1), the building provision, not
under § 39-3-404(b)(1), the safecracking provision.
grand jury charged that

A Tennessee

Mitchell, on February 3, 1986, “did

commit the offense of burglary in the 3rd degree by unlawfully,
feloniously
BUSINESS

and

burglariously

HOUSE

unlawfully,

OF

ACE

feloniously

breaking

APPLIANCE

and

into

entering

CO. . . . with

burglariously

to

carry away the personal property therein.”
6-3 at 59.)

and

steal,

THE

intent
take

and

(17-02341: ECF No.

Mitchell’s record of judgment shows that he pled

guilty to this charged offense.

(Id. at 60-63.)

Having confirmed that Mitchell was convicted under § 39-3404’s building provision, the Court must determine whether a
burglary

offense

violent felony.

under

that

provision,

as

a

category,

See Covington, 738 F.3d at 763.

is

a

The Government

contends that it is.
At
burglary
required
(2) the

the

time

of

conviction
the

state

entry,

Mitchell’s
under

conviction,

§ 39-3-404’s

to

prove

four

(3) any

house

of
32

third

building

elements:
another

a

provision

“(1) the

other

than

degree

breach,
dwelling

house, and (4) felonious intent.”

Petree v. State, 530 S.W.2d

90, 94 (Tenn. Crim. App. 1975); see also Duchac v. State, 505
S.W.2d 237, 239 (Tenn. 1973) (same).17
noted

that,

under

§ 39-3-404,

the

The Sixth Circuit has

entry

must

be

unlawful.

Caruthers, 458 F.3d at 475 (citing Tennessee authority).

In

Taylor, the Supreme Court defined generic burglary for purposes
of

the

ACCA’s

enumerated-offenses

clause

as

“any

crime,

regardless of its exact definition or label, having the basic
elements of unlawful or unprivileged entry into, or remaining
in, a building or structure, with intent to commit a crime.”
495 U.S. at 599.

By criminalizing the unlawful entry into a

non-dwelling “house” (i.e., a building or structure) with intent
to commit a felony, the text of § 39-3-404’s building provision
appears

to

have

criminalized

conduct

constituting

a

violent

felony under the enumerated-offenses clause.
Tennessee

case

law,

however,

building provision is overbroad.

shows

that

§ 39-3-404’s

In Fox, the Tennessee Supreme

Court addressed whether a third degree burglary conviction could
be sustained where a defendant lawfully entered a public phone
booth, but broke and opened a coin receptacle inside the phone
booth.

214 S.W.2d at 26-27.

At the time, Tenn. Code Ann. § 39-

17

Petree and Duchac addressed Tennessee third degree burglary
under previously styled Tenn. Code Ann. § 39-904, which, as
discussed below, had identical language, in relevant respects,
to Tenn. Code Ann. § 39-3-404.
See Petree, 530 S.W.2d at 94;
Duchac, 505 S.W.2d at 239.
33

904, a predecessor version of § 39-3-404, provided: “Burglary in
the third degree is the breaking and entering into a business
house,

outhouse,

or

any

other

house

of

another,

other

than

dwelling-house, with the intent to commit a felony” (“§ 39-904’s
building

provision”).

(effective

Jan.

1,

Tenn.

1956)

Code

Ann.

(repealed).

§ 39-904

Section

(1955)

39-904

also

provided: “Any person who, with intent to commit crime, breaks
and enters, either by day or by night, any building, whether
inhabited or not, and opens or attempts to open any vault, safe,
or other secure place by any means, shall be punished . . . .”
(“§ 39-904’s safecracking provision”).
ch. 321, 1188.18

See Public Acts of 1955,

Fox held that the “[d]efendants could lawfully

enter the telephone booth, which is a business house within the
meaning

of

Section

39–904,

but

by

breaking

into

the

money

receptacle after lawful entry they would be guilty of burglary
in the third degree.”

214 S.W.2d at 27.

18

Section 39-904’s safecracking provision does not appear in the
1955 edition of the Code.
The 1955 edition of the Code was
enacted on February 2, 1955. Public Acts of 1955, ch. 6, 53-54.
Section 39-904’s safecracking provision was enacted on March 18,
1955. Public Acts of 1955, ch. 321, at 1188 (amending § 10913,
a predecessor version of § 39-904); see Tenn. Code Ann. at 909,
970 (2009) (showing that § 10913 of the 1932 Code became § 39904 of the 1955 Code). Section 39-904’s safecracking provision
took effect immediately upon its passage and was incorporated
into § 39-904 thereafter.
See State ex rel. Wooten v. Bomar,
352 S.W.2d 5, 5-6 (Tenn. 1961) (discussing the addition of § 39904’s safecracking provision to § 39-904).
34

Although § 39-904 included a safecracking provision, Fox’s
holding

does

not

safecracking

rely

on

provision

or

discuss

criminalized

it.

the

Section

opening

or

39-904’s
attempted

opening of “any vault, safe, or other secure place” after first
“break[ing]

and

enter[ing] . . . any

building,”

but

the

defendants in Fox had not broken and entered into the phone
booth itself.
defendants’

Fox, 383 S.W.2d at 27.

conduct,

lawfully

entered

building

provision,

opening

a

public
Fox

a

coin

phone

relied

receptacle

booth,

on

State, 98 S.W.2d 98 (Tenn. 1936).

In holding that the

the

after

violated

reasoning

having

§ 39-904’s
of

Page

v.

Id.

In Page v. State, the Tennessee Supreme Court addressed
whether

a

burglary

conviction

could

be

sustained

where

the

defendant was lawfully inside a “business house,” but broke and
entered into a room within the business house.
99.

98 S.W.2d at 98-

The Page defendants had lawfully been inside a hotel, but

broke

into

property.

the

hotel

Id. at 98.

auditor’s

office

and

stole

personal

They had not broken and entered into the

hotel building itself.
Tennessee’s burglary statute applying to dwellings, then
§ 10910,

had

criminalized

the

a

corresponding
breaking

of

the

provision,
“premises,

§ 10911,
or

any

that

safe

or

receptacle therein” even without a breaking into the dwelling

35

itself.

See Tenn. Code Ann. §§ 10910-11 (1932) (repealed).19

The court explained that one could be convicted of “technical
burglary,” as

defined in

§ 10910, “if, though lawfully in a

dwelling house in the first instance, he breaks and enters into
a room of such premises with intent to commit a felony.”
98

S.W.2d

at

98-99.

Although

applicable

to

non-dwellings,

Tennessee’s

then

§ 10913,

Page,

burglary

statute

did

have

not

a

corresponding provision that criminalized the breaking of the
“premises, or any safe or receptacle therein” without a breaking
into the non-dwelling itself, see Tenn. Code Ann. §§ 10910-19,
Page concluded that, “[u]pon the same reasoning, one, although
lawfully in a business house, commits the offense described in
section 10913 of the Code when he breaks and enters into a room
of that business house, which he has no right to enter, for the
purpose of committing a felony.”

98 S.W.2d at 99.

Just as Page applied § 10911, or its principle, to § 10913,
Fox

reasoned

that

“Section 39-902

[formerly,

§ 10911],

or

at

least the same principle, applie[d] also to Section 39-904.”
Fox, 214 S.W.2d at 26-27.

Fox concluded:

19

Section 10910 provided: “Burglary is the breaking and entering
into a dwelling house, by night, with intent to commit a
felony.” Section 10911 provided: “Any person who, after having
entered upon the premises mentioned in the foregoing section,
with intent to commit a felony, shall break any such premises,
or any safe or receptacle therein, shall receive the same
punishment as if he had broken into the premises in the first
instance.”
36

The holding in the Page case applies to the facts in
this case.
Defendants could lawfully enter the
telephone booth, which is a business house within the
meaning of Section 39–904, but by breaking into the
money receptacle after lawful entry they would be
guilty of burglary in the third degree.
Id. at 27.
In Heald v. State, the Tennessee Court of Criminal Appeals
was

asked

to

telephone

overrule

booth

was

Fox’s

open

holding

to

the

“that

public

the

and

fact

hence

that

a

lawfully

entered did not prevent one breaking into the money receptacle
from being guilty of third degree burglary.”
243 (Tenn. Crim. App. 1970).
being

an

intermediate

472 S.W.2d 242,

Heald declined,

appellate

court,

have

no

opining, “We,
authority

to

overrule a clear and controlling authority promulgated by our
Supreme Court.”
By

the

Id.

time

of

Mitchell’s

1986

third

degree

burglary

conviction, § 39-904’s building and safecracking provisions had
been

restyled

Although
same.

as

restyled,

§§ 39-3-404(a)(1)
the

and

offense-conduct

(b)(1)
language

respectively.
remained

the

In Caruthers, the Sixth Circuit concluded that § 39-3-404

as a whole was overbroad or “nongeneric” because “it permitted
third-degree burglary convictions for unlawful entry into coin
receptacles and the like.”
S.W.2d

at

27).

Fox

safecracking-provision

was
case.

458 F.3d at 476 (citing Fox, 214
a

building-provision
Fox

37

has

never

case,

been

not

a

overruled.

Caruthers’s holding that § 39-3-404 is overbroad because of Fox
is binding on the Court.

Fox makes § 39-3-404(a)(1) overbroad.

Walker v. United States, Cv. No. 14-02021, Cr. No. 07-20243,
slip op. at 29-39 (W.D. Tenn. Apr. 20, 2017) (holding that,
after Descamps and under Caruthers and Fox, a conviction under
Tenn. Code Ann. 39-3-404(a)(1) is not categorically a violent
felony under the ACCA).
The

Government

contends

that

the

“Sixth

Circuit

has . . . specifically held that Tennessee’s 1982 third degree
burglary

statute

is

a

‘burglary’

(and

felony’) for purposes of the ACCA.”

therefore

a

‘violent

(17-02341: ECF No. 6 at 35

(citing United States v. Taylor, 800 F.3d 701, 719 (6th Cir.
2015); Caruthers, 458 F.3d at 475).)

In dicta, the Taylor court

addressed the effect if any Johnson had on prior Sixth Circuit
authority addressing Tennessee third degree burglary for ACCA
purposes.
whether
third

800 F.3d at 719 (“Finally, this Court will determine

Johnson

degree

affects

burglary

whether

in

Taylor’s

Tennessee

1987

qualifies

conviction
as

a

for

predicate

violent felony under the ACCA.

We are not required to do so,

however,

been

Taylor

since

has

it

three

has

already

predicate

Johnson does not affect.”).

offenses

determined,
for

ACCA

supra,

purposes

that
which

Taylor explained:

In United States v. Caruthers, this Court found
that
third
degree
burglary
under
the
pre–1989
Tennessee statute was “generic” burglary under the
38

ACCA’s enumerated clause because: (1) the case law
showed that the statute did in fact require unlawful
entry; and, (2) so long as the indictment shows that
the defendant broke and entered into an actual
building, the crime committed is a generic burglary
under the ACCA.
In the case sub judice, the PSR
indicates that Taylor’s 1982 conviction for burglary
in the third degree resulted from him breaking into a
store.
Under Caruthers, therefore, Taylor’s 1987
conviction qualifies as a generic burglary under the
“enumerated offenses” clause.
Accordingly, Johnson
leaves unaffected Taylor’s ACCA enhancement based on
his 1987 conviction for burglary in the third degree
under Tennessee law.
Id. at 719-20 (citation omitted).
Caruthers’s holding that § 39-3-404 is overbroad because of
Fox remains good law.

Caruthers’s pre-Descamps endorsement of a

fact-based analysis in determining whether a prior conviction
under an overbroad statute qualifies as a violent felony under
the ACCA does not.
Shepard

documents

Under Descamps, this Court may examine the
for

Mitchell’s

§ 39-3-404

conviction

to

determine which of the statute’s alternative offenses formed the
basis of that conviction, but the Court may not examine the
Shepard documents to determine whether the factual basis for
that conviction amounts to generic burglary.

The Court may not

conclude that Mitchell’s § 39-3-404(a)(1) offense qualifies as
an

ACCA

predicate

because

the

indictment

alleged

that

a

building, in fact, was burglarized.
Sixth Circuit decisions, including Taylor, have previously
endorsed

that

kind

of

fact-based

39

analysis.

See,

e.g.,

Caruthers, 458 F.3d at 474-76 (analyzing a pre-1989 Tennessee
third degree burglary offense); see also, e.g., Taylor, 800 F.3d
at 719-20 (endorsing, in dicta, Caruthers’s method of analysis
of

a

pre-1989

Descamps

and

approach.

Tennessee

Mathis,

See

defendant
referred

to

as

commission --

however,

Mathis,

actually

third

136

rule

S.

perpetrated

the

degree
out

Ct.
the

‘underlying

burglary
such

at

2251

crime

brute

--

facts

a

offense).
fact-based

(“How

a

given

what

we

have

or

means’

of

makes no difference; even if his conduct fits

within the generic offense, the mismatch of elements saves the
defendant from an ACCA sentence.” (citation omitted)).

Taylor

decided that Johnson, which invalidated the residual clause, did
not

overrule

or

undermine

enumerated-offenses clause.

Caruthers,

a

case

addressing

the

See Taylor, 800 F.3d at 720 (“Under

Caruthers, therefore, Taylor’s 1987 conviction qualifies as a
generic

burglary

under

the

‘enumerated

offenses’

clause.

Accordingly, Johnson leaves unaffected Taylor’s ACCA enhancement
based on his 1987 conviction for burglary in the third degree
under Tennessee law.”).

Taylor did not cite Descamps or Mathis

or address whether and to what extent those intervening Supreme
Court

decisions

Caruthers.

undermine

the

fact-based

analysis

used

in

See United States v. Simmons, No. 3:13-cr-00066, at

*6-7 (M.D. Tenn. July 21, 2016) (“While the Sixth Circuit in
both

Caruthers

and

Taylor

looked
40

at

the

underlying

charging

documents to determine whether the defendant ‘actually committed
a

generic

burglary’

Mathis

now

forecloses

that

approach.”

(citation omitted)).
Because § 39-3-404(a)(1) could be violated where the “entry
into, or remaining in, a building or structure” was lawful, a
§ 39-3-404(a)(1)

offense

is

broader

than

generic

burglary.

Mitchell’s 1986 Tennessee conviction for third degree burglary
is no longer a violent felony under the ACCA.
2.
After
burglary

Johnson,

without

conviction,

convictions.
assault

Tennessee Aggravated Assault Convictions

Those

convictions.

Mitchell
are

which

under

ACCA,

the

at

two

Mitchell

conviction
but

has

his

kidnapping
the

counting

may

Mitchell’s
most

1986

also

Government

as

agrees

a
a

degree

ACCA-predicate

Tennessee

has

qualify

two

third

aggravated

1986

Tennessee

violent

that

the

felony
offense

conduct for that conviction occurred on the same occasion as the
offense conduct for Mitchell’s second 1986 aggravated assault
conviction.20

Mitchell’s

kidnapping

conviction

and

second

aggravated assault conviction cannot count as two ACCA-predicate
convictions

because

they

were

different from one another.”

not

“committed

on

occasions

18 U.S.C. § 924(e)(1).

Mitchell

has at most two ACCA-predicate convictions after Johnson.

20

The Government does not provide any Shepard documents for
Mitchell’s kidnapping conviction.
41

“[A]ggravated assault is not an enumerated crime” under the
ACCA.

McMurray, 653 F.3d at 373.

The Government contends,

however, that Mitchell’s aggravated assault convictions qualify
under the ACCA’s use-of-force clause.
The

Government

acknowledges

that,

for

one

aggravated assault convictions, because the

of

Mitchell’s

Shepard documents

are unclear, it is possible that Mitchell’s conviction could
have been based on reckless conduct.
27.)
of

(17-02341: ECF No. 6 at

In McMurray, the Sixth Circuit “conclude[d] that the ‘use
physical

requires

force’

more

McMurray’s

clause

than

holding

of

reckless
would

the

ACCA,

conduct.”

preclude

§ 924(e)(2)(B)(i),
653

that

F.3d

at

aggravated

375.

assault

conviction from qualifying as an ACCA predicate.
The

Government

resists

that

conclusion

by

arguing

that

McMurray has been undermined by Voisine v. United States, 136 S.
Ct.

2272

(2016).

(17-02341:

ECF

No.

6

at

29-30.)

The

Government contends that “after Voisine, convictions based on
reckless
ACCA.”

conduct

qualify

as

violent

felonies

under

the

(Id. at 32.)

Voisine
makes

can

it

a

addressed
crime

for

whether

18

anyone

who

U.S.C.
has

§ 922(g)(9),

been

convicted

which
of

a

“misdemeanor crime of domestic violence” to possess a firearm,
extends
conduct.

to

misdemeanor

assault

136 S. Ct. at 2276.

convictions

based

on

reckless

Voisine held that it does.
42

Id.

at 2282.
argument

Courts in this Circuit, however, have rejected the
that

Voisine

has

undermined

McMurray’s

holding

that

crimes committed recklessly cannot qualify as violent felonies
under the ACCA’s use-of-force clause.

E.g., United States v.

Buford, No. 04-20481, 2017 U.S. Dist. LEXIS 69068, at *24 (W.D.
Tenn. Apr. 26, 2017); Davis v. United States, Nos. 3:01-CR-83RLJ-HBG-1, 3:16-CV-688-RLJ, 2017 WL 1380558, at *2-3, *9 (E.D.
Tenn. Apr. 17, 2017); United States v. Wehunt, ___ F. Supp. 3d
___, No. 1:16-cr-17-1, 2017 WL 347544, at *2 (E.D. Tenn. Jan.
24, 2017).
The Court is persuaded by the reasoning of those decisions.
McMurray remains good law.

One of Mitchell’s aggravated assault

convictions does not qualify as a violent felony under the ACCA
because it may have been based on reckless conduct.

At most,

only one of Mitchell’s aggravated assault convictions qualifies
as an ACCA predicate.
E.
It

Briefing of Kidnapping Conviction Unnecessary
is

unnecessary

for

the

Government

to

brief

whether

Mitchell’s 1986 Tennessee conviction for kidnapping qualifies as
a violent felony under the ACCA.

Even if it were to qualify,

Mitchell would have at most two ACCA-predicate convictions.
the

extent

the

Government

requests

briefing, that request is DENIED.

43

permission

for

To

further

Mitchell
convictions.
IV.

no

longer

has

at

least

three

ACCA-predicate

He is entitled to relief under Johnson.

Conclusion
For the foregoing reasons, Mitchell’s Johnson § 2255 Motion

is GRANTED.
Because Mitchell is entitled to relief under Johnson, the
sentence in Criminal Case No. 99-20272 is VACATED.
its

discretion

may

correct

production of the prisoner.

a

sentence

without

The Court in
requiring

See 28 U.S.C. § 2255(c).

the

Mitchell

has served more than the ten-year statutory maximum term under
18 U.S.C. § 924(a)(2).

Mitchell 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. 99-20272 are reimposed.
143 at 83.)

(99-20272: ECF No.

This order shall take effect 10 days from entry.21

So ordered this 5th day of July, 2017.

21

Mitchell’s remaining motions seek lesser or the same relief as
the relief he seeks in his Johnson § 2255 Motion. Because that
motion is granted, the 17-02341 Motion for Discovery, the 1702341 First Motion to Dismiss, the 17-02341 Second Motion to
Dismiss, the 99-20272 First Motion for Hearing, the 99-20272
Second Motion to Dismiss, the 99-20272 Third Motion to Dismiss,
and the 99-20272 Second Motion for Hearing are DENIED as moot.
44

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

45