Mitchell v. United States, Cv. No. 17-02341, Cr. No. 99-20272.

• Citation: 257 F.Supp.3d 996
• Decision Date: 05 July 2017
• Docket Number: Cv. No. 17-02341, Cr. No. 99-20272.
• Parties: Stephen Murray MITCHELL, Petitioner, v. UNITED STATES of America, Respondent.
• Court: United States District Courts. 6th Circuit. Western District of Tennessee

257 F.Supp.3d 996

Stephen Murray MITCHELL, Petitioner,
v.
UNITED STATES of America, Respondent.

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

United States District Court, W.D. Tennessee, Western Division.

Signed July 5, 2017

257 F.Supp.3d 998

Stephen Murray Mitchell, Memphis, TN, pro se.

Tony R. Arvin, 2255, AUSA, US Attorney's Office, Memphis, TN, for Respondent.

ORDER

SAMUEL H. MAYS, JR., UNITED STATES DISTRICT JUDGE

Before the Court is Stephen Murray Mitchell's pro se second or successive motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (the " Johnson § 2255 Motion"). (17–02341: ECF No. 1–1 at 3.¹ ) Mitchell challenges his sentence in Criminal Case No. 99–20272,²

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seeking relief under Johnson v. United States, –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson"). The United States (the "Government") has responded. (17–02341: ECF No. 6 at 22.) Mitchell has replied. (17–02341: ECF No. 7 at 69.) With leave of Court, Mitchell filed a supplemental reply. (17–02341: ECF No. 8 at 96; see ECF No. 8–3 at 102.)

Also before the Court in Case No. 17–02341 are the following motions: (1) Mitchell's "Motion for 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 the Court in Case No. 99–20272 are the following motions: (1) Mitchell's "Motion to Dismiss Judgment No. 99–20272" (the "99–20272 First Motion to Dismiss"); (2) Mitchell's "Motion for Leave to Amend Pleading in Order to Request Time Served" (the "99–20272 Motion to Amend"); (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" (the "99–20272 Second Motion for Hearing"). (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.

I. Background

A. Case No. 99–20272

Following a jury trial, on December 15, 2000, Mitchell was convicted of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). (99–20272: ECF No. 124 at 74; ECF No. 143 at 83.)

On January 30, 2001, the United States Probation Office prepared a Presentence

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Investigation Report (the "PSR"). (PSR at 1.) The PSR calculated Mitchell's guidelines sentencing range pursuant to the 2000 edition of the 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 Career Criminal Act, 18 U.S.C. § 924(e) (the "ACCA"). (Id.¶ 19 at 6.) The PSR identified at least five ACCA–predicate convictions in Mitchell's criminal history. (Id.¶¶ 29–31, 35–36 at 9–11, 13–14.) Mitchell's guidelines range was 235–293 months in prison. (Id.¶ 72 at 26.) Mitchell's statutory minimum sentence was 180 months. (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.) Judgment was entered on August 1, 2001. (99–20272: ECF No. 143 at 83.)

Mitchell appealed, and the Court of Appeals for the Sixth Circuit affirmed on October 21, 2002. United States v. Mitchell, 48 Fed.Appx. 955 (6th Cir. 2002).

B. Case No. 03–02753

On October 8, 2003, Mitchell filed a motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (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 other grounds, Mitchell contended that his sentence exceeded the statutory maximum. (See id. at 3.) The Court rejected that argument, finding that Mitchell's claim was procedurally defaulted. (Id. at 11–12.) Mitchell 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, 127 S.Ct. 539, 166 L.Ed.2d 399 (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. (08–02528: ECF No. 1 at 1.⁵ ) On March 11, 2009, the Court denied Mitchell's § 2241 petition. (08–02528: ECF No. 4 at 57.) Among other grounds, Mitchell challenged his 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. (Id. at 63–64.) Following entry of judgment, Mitchell appealed, and the Court of Appeals affirmed the judgment on January 26, 2010. Mitchell v. Castillo, No. 09–5545 (6th Cir. Jan. 26, 2010), cert. denied, 562 U.S. 807, 131 S.Ct. 329, 178 L.Ed.2d 9 (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

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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 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. (10–02958: ECF No. 9 at 55–56.) As an alternative basis for its decision, the Court opined that Mitchell had been sentenced properly as an armed career criminal. (Id. at 56.) The Court opined that Mitchell's two Tennessee convictions for burglary of a building were properly counted as predicate offenses. (Id. at 58–59.) The Court also opined that Mitchell's Tennessee third 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. (10–02958: ECF No. 15 at 136.) Mitchell appealed the judgment, and the Court of Appeals affirmed on January 26, 2010, deciding that Mitchell's claims were not properly raised in a § 2241 petition. Mitchell v. United States, No. 11–5790 (6th Cir. Oct. 12, 2012), cert. denied, 569 U.S. 945, 133 S.Ct. 2010, 185...