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Jemison v. United States

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

August 6, 2018

BRUCE LEVAN JEMISON, Movant/Defendant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

         This action is before the court on the motion to vacate, set aside, or correct sentence filed by Bruce Levan Jemison pursuant to 28 U.S.C. § 2255.[1]

         Jemison was sentenced by this court on February 5, 2008, to imprisonment for a term of 180 months following his conviction on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).[2] A violation of that statute generally is punishable by a maximum sentence of ten years imprisonment. See 18 U.S.C. § 924(a)(2). Here, however, Jemison's sentence was enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), which provides, in pertinent part, that:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

         18 U.S.C. § 924(e)(1) (emphasis supplied). On the date of sentencing by this court, Jemison had three previous convictions for “serious drug offenses”: i.e., (1) unlawful distribution of a controlled substance in Talledega County Circuit Court in 1988; (2) a second conviction for unlawful distribution of a controlled substance in Talledega County Circuit Court in 1988; and, (3) possession of marijuana in Clay County Circuit Court in 1995.[3]

         The Eleventh Circuit affirmed Jemison's conviction and this court's sentence in an opinion entered on September 12, 2008.[4] The Circuit's opinion was issued as the mandate of the Court on October 14, 2008.[5]

         No further proceedings occurred in Jemison's criminal case until on or about June 13, 2016, when he filed a pro se motion requesting this court

to appoint counsel to review his case, records and files and to file the approperiate [sic] Motion and argument under the recent [decision in] Johnson v. United States, [576 U.S. ___, 135 S.Ct. 2551 (2015), ] in which the U.S. Supreme Court has made a substantial ruling of Constitutional Law that the ACCA § 924(e) is unconstitutional.
Petitioner in the above entitled case number was sentenced as a ACCA offender in which his sentence was enhanced to 180 months.

Doc. no. 43 in No. 1:07-cr-00287-CLS-SGC (“Motion to Appoint Counsel to Review Petitioner's Case and Records for the Johnson v. United States ACCA Residual Clause”) (alterations supplied).

         In accordance with the usual practices of this court at that time, Jemison's motion was assigned to one of this court's Magistrate Judges for review, [6] and that judge entered the following Order on June 15, 2016:

On June 13, 2016, the defendant filed a motion to appoint counsel in the above-styled cause. (Doc. 43). Pursuant to the Standing Order of September 14, 2015, the court refers this case to the Office of the Federal Public Defender for the Northern District of Alabama to determine whether he may qualify for federal habeas relief in light of Johnson v. United States, 135 S.Ct. 2551 (2015).
The court DIRECTS the Clerk to send a copy of this order to the Federal Public Defender and the defendant.

Doc. no. 44 in No. 1:07-cr-00287-CLS-SGC (Order) (emphasis added).[7]

         Following review of Jemison's file, the Public Defender filed the following motion on June 16, 2016:

         COMES NOW KEVIN L. BUTLER, Federal Public Defender for the Northern District of Alabama, and respectfully moves the Court to withdraw from representation of Mr. Jemison. In support, Mr. Butler states:

1. This Court appointed the Federal Defender to represent Mr. Jemison in order to determine whether he may qualify for federal habeas relief in light of Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. 44).
2. The policy of the Federal Defender is to make every effort to avoid withdrawing from representation in cases where the Federal Defender's representation is plenary. In this case, the Court has appointed the Federal Defender for the limited purpose of ...

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