United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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. (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
Factual Background and Procedural History
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).
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).
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).
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. #
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.
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).
Petitioner Has Not Presented a Johnson
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
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 ...