Ervin v. United States
| Decision Date | 06 November 2020 |
| Docket Number | No. 1:16-cv-01067-JDB-jay,1:16-cv-01067-JDB-jay |
| Parties | DENNIS DARNELL ERVIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Tennessee |
Petitioner, Dennis Darnell Ervin,1 has filed a pro se motion to vacate, set aside, or correct his sentence (the "Petition"), pursuant to 28 U.S.C. § 2255. 2 He also has submitted two motions for appointment of counsel. (D.E. 15; D.E. 16.) For the following reasons, the motions are HELD IN ABEYANCE and the Respondent, United States of America, is DIRECTED to file documents relating to Petitioner's prior Tennessee aggravated assault conviction.
On March 19, 2012, the grand jury for the Western District of Tennessee returned an indictment charging Ervin with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (United States v. Ervin, No. 1:12-cr-10025-JDB-1 (W.D. Tenn.) ("No. 1:12-cr-10025-JDB-1"), D.E. 2.) At a hearing held on August 17, 2012, the Defendant pleadedguilty to Count 2 of the of the indictment pursuant to a plea agreement with the Government. (Id., D.E. 29; D.E. 30.)
In the presentence report (the "PSR"), the probation officer advised that Ervin qualified for a minimum sentence of 180 months' incarceration under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). (PSR at ¶25.) The PSR listed seven of the Defendant's prior convictions as predicate offenses for an enhanced sentence under that statute: Louisiana simple burglary, Florida burglary, Tennessee third-degree burglary, Tennessee second-degree burglary, Tennessee aggravated burglary, Tennessee aggravated assault, and Tennessee evading arrest. (PSR at ¶¶ 25, 32, 33, 35, 37, 46, 52, 68.) Ervin's imprisonment range under the United States Sentencing Commission Guidelines Manual (the "Guidelines" or "U.S.S.G."), was calculated to be 188 to 235 months. (PSR Worksheet at 1.)
In his supplemental position paper, Defendant lodged several objections to the PSR, including its use of his Louisiana and Florida burglary convictions and his Tennessee third-degree burglary and aggravated assault offenses to qualify him as an armed career criminal. (No. 1:12-cr-10025-JDB-1, D.E. 42 at PageID 57-59.) At the sentencing hearing, defense counsel "withdr[ew] all [of] the objections" and the parties "joint[ly] recommend[ed] . . . a sentence at the . . . mandatory minimum" of 180 months' incarceration. (Id., D.E. 68 at PageID 121, 130.) The Court found that Defendant qualified as an armed career criminal because he had at least three prior violent felony convictions. (Id., D.E. 68 at PageID 127-28.) A sentence of 180 months' imprisonment and three years of supervised release was imposed. (Id., D.E. 68 at PageID 130.) Judgment was entered on May 6, 2013, (id., D.E. 53), and Defendant did not take a direct appeal.
In 2015, Ervin filed an application with the Sixth Circuit Court of Appeals for permission to file a second or successive § 2255 petition, pursuant to 28 U.S.C. 2244(b), 2255(h). (Id., D.E.55.) The Sixth Circuit denied the application as unnecessary because the prisoner had never filed a first § 2255 petition. (Id., D.E. 56 at PageID 96.) The court transferred the application to this Court "for consideration as an initial § 2255 motion." (Id., D.E. 56 at PageID 97) The Petition was then docketed as the initial pleading in the present case.
The Petition presents the sole claim that Ervin is entitled to resentencing without the ACCA enhancement on the authority of Johnson v. United States, 135 S. Ct. 2551 (2015). On February 27, 2020, the Court held this matter in abeyance pending the Sixth Circuit's decision in United States v. Buie, 960 F.3d 767 (6th Cir. 2020). (D.E. 10.) One of the issues raised in Buie was whether Tennessee second-degree burglary was an ACCA predicate. See Buie, 960 F.3d at 770. The present case was administratively closed. (D.E. 10.)
After Buie was decided in May 2020, the Government notified the Court of that event and filed its response to the Petition. (D.E. 11.) Respondent argued that the inmate waived the Petitioner's sole claim through his collateral-attack waiver in his criminal case. The Government further posited that the claim was without merit because, even excluding the convictions affected by Johnson, Petitioner had at least three convictions that qualify as ACCA predicates.
On July 20, 2020, the Court reopened the case and lifted the stay (D.E. 14) and granted Ervin an extension of time to file a reply (D.E. 13). He filed two motions for counsel (D.E. 15; D.E. 16), but did not submit a reply. The Government did not respond to the motions.
A prisoner seeking to vacate his sentence under § 2255 "must allege either '(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of factor law that was so fundamental as to render the entire proceeding invalid.'" Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). A petitioner has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
18 U.S.C. § 924(e)(2)(B). Subsection (i) is commonly called the "use-of-force" clause. United States v. Priddy, 808 F.3d 676, 683 (6th Cir. 2015). The first part of subsection (ii) is the "enumerated- offenses" clause, while the phrase "otherwise involves conduct that presents a serious potential risk of physical injury to another" is referred to as the "residual clause." Id.
In Johnson, the Supreme Court held that the residual clause was unconstitutionally void for vagueness. Johnson, 135 S. Ct. at 2556-57. Therefore, an enhanced sentence under that clause violated due process as guaranteed by the Fifth Amendment. Id. The decision left the ACCA's use-of-force and enumerated-offenses clauses undisturbed. Id. at 2563.
To determine if a conviction constitutes a violent felony under the enumerated-offenses or use-of-force clause, a court must first apply the "categorical approach," which focuses on the statute under which the petitioner was convicted, rather than his conduct. Cradler v. United States, 891 F.3d 659, 667 (6th Cir. 2018) (citing Taylor v. United States, 495 U.S. 575, 600 (1990)). Ifthe statute is "divisible," meaning it describes multiple offenses, the court may "employ the 'modified categorical approach.'" United States v. House, 872 F.3d 748, 753 (6th Cir. 2017) (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)). That approach permits the examination of "a limited class of documents" from the defendant's prior criminal case in order "to determine which alternative formed the basis of the defendant's . . . conviction." Id. (quoting Descamps, 570 U.S. at 257). Those records are known as "Shepard" documents. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). The Supreme Court in Mathis clarified that a statute is divisible if it lists alternative elements, not alternative means of satisfying one or more elements. Mathis, 136 S. Ct. at 2249. If the statute lists alternative means, then it is "indivisible," and resort to the limited class of documents is prohibited. Id. at 2448.
Under either approach, the "second step" in a court's analysis is to "determine whether the offense, as described either by the entirety of an indivisible statute or by the relevant alternative of a divisible statute," United States v. Pittman, 736 F. App'x 551, 554 (6th Cir.), cert. denied, 139 S. Ct. 608 (2018), matches the generic definition of an enumerated offense, Mathis, 136 S. Ct. at 2247, or the federal definition of "physical force" as "force capable of causing physical pain or injury to another person," United States v. Southers, 866 F.3d 364, 366 (6th Cir. 2017) (quoting Johnson v. United States, 559 U.S. 133, 138, 140 (2010)). If there is a mismatch, the prior conviction is not a violent felony under the ACCA. Cradler, 891 F.3d at 667 (citing Descamps, 570 U.S. at 257).
As part of the plea agreement, Ervin "waive[d] his right to challenge his conviction and sentence, the manner in which the sentence was determined, or his attorney's alleged failure orrefusal to file a notice of appeal, in any collateral attack, including but not limited to a motion brought under 28 United States Code Section 2255." (No. 1:12-cr-10025-JDB-1, D.E. 30 at PageID 39.) The Government argues that Petitioner's knowing and voluntary waiver precludes his collateral attack on his sentence on the ground that he no longer qualifies as an armed career criminal. In support, it relies on Cox v. United States, 695 F. App'x 851 (6th Cir. 2017). The argument is without merit.
As a general matter, "[a] defendant's waiver of h[is] right to collaterally attack h[is] conviction and sentence under § 2255 is enforceable when it is entered into 'knowingly, intelligently, and voluntarily.'" Steward v. United States, No. 16-6181, 2017 WL 3221713, at *2 (6th Cir. Mar. 16,...
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