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Tannehill v. United States

United States District Court, N.D. Alabama, Southern Division

April 24, 2018

CALVIN FITZGERALD TANNEHILL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         Before the court is the Motion to Vacate, Set Aside, or Correct Sentence filed by Petitioner Calvin Fitzgerald Tannehill (“Petitioner” or “Tannehill”) on June 23, 2016, pursuant to 28 U.S.C. § 2255. (Case No. 2:16-cv-08085-RDP, Doc. # 1). The Motion has been fully briefed.[1] (Case No. 2:16-cv-08085-RDP, Docs. # 1, 7, 10). After careful review, and for the reasons discussed below, Petitioner's Motion is due to be dismissed with prejudice.

         I. Factual Background and Procedural History

         On March 15, 2007, agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives executed a search warrant on Tannehill's residence and discovered several guns, ammunition, digital scales with cocaine residue on them, and over eleven grams of crack cocaine. (Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 41 at 2). On July 25, 2007, a jury convicted Tannehill of the following federal offenses: (1) felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1), (“Count One”); (2) possession with the intent to distribute five grams or more of a mixture and substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), (“Count Two”); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), (“Count Three”). (See Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 48). Because Tannehill had previously been convicted of “seven violent felonies” (four burglary convictions and three escape convictions), he was considered an armed career criminal, and Count One was enhanced under 18 U.S.C. § 924(e)(1). (Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 59 at ¶ 26). Ultimately, the court sentenced Tannehill to be imprisoned for 235 months as to Counts One and Two, to run concurrently with each other, and for 60 months as to Count Three, to run consecutively with the sentences in Counts One and Two. (Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 61).

         Tannehill appealed to the United States Court of Appeals for the Eleventh Circuit. (See Case No. 2:07-cr-00115-RDP-SGC-1, Docs. # 64-66). The Eleventh Circuit affirmed Tannehill's convictions on December 30, 2008. United States v. Tannehill, 305 Fed. App'x 612 (11th Cir. 2008). Tannehill did not seek certiorari review in the Supreme Court. On February 25, 2009, Tannehill filed a pro se motion in this court pursuant to 18 U.S.C. § 3582(c), seeking application of an amendment to the sentencing guidelines. (Case No. 2:07-cr-00115-RDP-SGC-1, Doc. # 81). The court denied that motion. (Case No. 2:07-cr-00115-RDP-SGC-1, Docs. # 86, 87). The Eleventh Circuit affirmed the denial of the § 3582(c) motion. United States v. Tannehill, 344 Fed. App'x 576 (11th Cir. 2009).

         On March 16, 2009, Tannehill filed a motion to vacate his federal sentence pursuant to 28 U.S.C. § 2255. (Case No. 2:09-cv-08008-RDP-PWG, Docs. # 1, 3). That motion was denied on March 28, 2012. (Case No. 2:09-cv-08008-RDP-PWG, Docs. # 41, 42). Tannehill sought review of that decision, but the Eleventh Circuit twice denied Tannehill a Certificate of Appealability. (Case No. 2:09-cv-08008-RDP-PWG, Docs. # 54, 67). On January 8, 2015, Tannehill moved to reopen his § 2255 proceeding, and that motion was later denied. (Case No. 2:09-cv-08008-RDP-PWG, Docs. # 68, 71).

         On April 14, 2016, Tannehill filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2255(e). (Case No. 2:16-cv-8026-RDP, Doc. # 1). After Tannehill moved to withdraw that petition, the court dismissed it without prejudice and suggested that Tannehill contact the Eleventh Circuit to inquire about an application to file a second or successive § 2255 motion. (Case No. 2:16-cv-8026-RDP, Docs. # 2, 3). On July 6, 2016, the Eleventh Circuit authorized this pending § 2255 Motion, which Tannehill filed on June 23, 2016. (Case No. 2:16-cv-08085-RDP, Docs. # 1, 2).

         II. Jurisdiction

         The instant Motion is a successive § 2255 petition. A second or successive motion under 28 U.S.C. § 2255 “must be certified as provided in section 2244 by a panel of the appropriate court of appeals.” 28 U.S.C. § 2255. Section 2244 provides that “before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Absent an order from the court of appeals authorizing the consideration of the application, “the district court lacks jurisdiction to consider a second or successive petition.” Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003); see also United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). Here, The Eleventh Circuit has authorized Petitioner to file this successive § 2255 Motion. (Case No. 2:16-cv-08085-RDP, Doc. # 2). Accordingly, this court has jurisdiction to consider Petitioner's Motion.

         III. Analysis

         A federal prisoner may file a motion to vacate his or her sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). In Johnson v. United States, the Supreme Court held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act (“ACCA”) violates the Fifth Amendment's guarantee of due process because the residual clause is unconstitutionally vague. 135 S.Ct. 2551, 2563 (2015). This ruling applies retroactively to cases on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1265 (2016). Johnson did not affect the enumerated offenses clause and the elements clause of the ACCA. See generally 135 S.Ct. 2551; see also Beeman v. United States, 871 F.3d 1215, 1221 (11th Cir. 2017) (noting that the enumerated offense clause and the elements clause were not called into question by Johnson).

         A. Petitioner Has Not Presented a Johnson Claim

         “To prove a Johnson claim, a movant must establish that his sentence enhancement ‘turn[ed] on the validity of the residual clause.'” Beeman, 871 F.3d at 1221. A Johnson violation only occurs if the movant would not have been sentenced as an armed career criminal absent the existence of the residual clause. Id. When explaining a petitioner's burden of proving that his sentencing enhancement was imposed because the sentencing court used the residual clause, the Eleventh Circuit explained:

To prove a Johnson claim, the movant must show that-more likely than not-it was use of the residual clause that led to the sentencing court's enhancement of his sentence. If it is just as likely that the sentencing court relied on the elements or enumerated offenses clause, solely or as an alternative basis for the enhancement, then the movant ...

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