United States District Court, N.D. Alabama, Southern Division
TORACE D. PERRY, Movant,
UNITED STATES OF AMERICA, Respondent.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
movant Torace D. Perry filed a motion to vacate, set aside,
or correct his sentence on May 17, 2016,  contending that
the court should vacate his conviction and sentence based on
the Supreme Court's decision in United States v.
Johnson, 135 S.Ct. 2551 (2015). In Johnson, the
Supreme Court struck down the “residual clause”
in 18 U.S.C. § 924(e) of the Armed Career Criminal Act
(ACCA) as unconstitutionally vague. Johnson, 135
S.Ct. at 2557. Mr. Perry urges this court to extend the
holding in Johnson regarding the unconstitutionally
vague “residual clause” in § 924(e) to
invalidate the binding plea agreement he entered predicated
on his belief that the ACCA would apply in his case. For the
following reasons, the court refuses to extend
Johnson beyond its holding and finds that Mr.
Perry's motion to vacate is untimely and due to be
Indictment charged Mr. Perry with being a felon in possession
of a firearm in Count One pursuant to 18 U.S.C. §
922(g)(1), and with unlawfully possessing an unregistered
sawed-off shotgun in Count Two pursuant to 26 U.S.C. §
5861(d). Mr. Perry pled guilty to only Count Two pursuant to
a binding plea agreement on June 26, 2014. (Doc. 16 in
2:14-cr-131). As part of that binding plea agreement, the
Government agreed to a sentence of 120 months imprisonment
and to dismiss Count One at the time of sentencing. The plea
agreement specifically states that Mr. Perry and the
Government “intend to have the defendant plead guilty
to Count 2 and receive a 10-year sentence rather than risk a
mandatory 15-year sentence [under the ACCA], if convicted at
trial under Count 1.” (Doc. 16 at 4 fn 1 in
court accepted the binding plea agreement, and on November 3,
2014, sentenced Mr. Perry to the agreed-upon 120 months
imprisonment for Count Two; the Government dismissed Count
One. (Doc. 22 in 2:14-cr-131). Because the plea agreement
provided that the Government would dismiss the felon in
possession charge under Count One, the Pre-sentence Report
did not include a recommendation that the court enhance Mr.
Perry's sentence pursuant to the ACCA. (Doc. 20 in
2:14-cr-131 SEALED). Mr. Perry did not appeal his conviction
or sentence to the Eleventh Circuit.
Perry filed his motion to vacate more than two years later
under 18 U.S.C. § 2255(f)(3), which allows a petitioner
to file a motion to vacate within one year from “the
date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review.” He claims that the Supreme
Court's decision in Johnson makes his conviction
and sentence unconstitutional, and that the Supreme Court in
Welch v. United States, 136 S.Ct. 1257 (2016) made
the Johnson holding retroactive to cases on
Mr. Perry alleges that his three prior Georgia burglary
convictions that he claims the court determined to be violent
felonies no longer qualify as such under the ACCA after
Johnson. He also claimed that he instructed his
counsel to file a direct appeal, but his counsel failed to do
so. As such, he asked the court to allow a “belated
appeal” and “restore [his] right to appeal”
his case. (Doc. 1).
court appointed counsel to represent Mr. Perry in this case
and allowed his counsel to file an amended motion. (Docs. 2
& 3). In his “Amended Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255 and
Memorandum in Support, ” his counsel incorporated Mr.
Perry's ineffective assistance of counsel claim based on
the failure to file a direct appeal and further explained
that, after Johnson, Mr. Perry's burglary
convictions no longer qualified as “crimes of
violence” under either the force, enumerated offense,
or residual clauses of § 924(e)(2)(B)(i) or (ii).
court ordered the Government to show cause why it should not
grant Mr. Perry the relief he seeks (doc. 9), and the
Government responded; it argued that the decision in
Johnson does not apply because Mr. Perry was not
sentenced pursuant to the ACCA and Johnson provides
no basis on which to invalidate the binding plea agreement.
The Government also argued alternatively that
Johnson was of no consequence because the Georgia
burglary charges could still qualify as predicate offenses
under the enumerated clause that the Supreme Court did not
invalidate in Johnson (doc. 12).
Government also argued that, because Johnson has no
relevance to his claim of ineffective assistance of counsel
for failure to file a direct appeal, that claim is untimely
because Mr. Perry did not file it within one year after his
conviction became final on November 17, 2014, as required by
28 U.S.C. § 2255(f)(1).
reviewing the Government's response, the court ordered
Mr. Perry to submit a reply. (Text Order, Doc. 13). Mr. Perry
then submitted his reply to the Government's response.
(Doc. 14). Unfortunately for Mr. Perry, Johnson does
not apply to his case and his habeas motion is untimely.
Johnson, the Supreme Court found the “residual
clause” of the ACCA, 18 U.S.C. § 924(e),
unconstitutionally vague. Under the ACCA, a defendant
convicted as a felon in possession of a firearm under 18
U.S.C. § 922(g) and who has three prior “violent
felonies” or serious drug offense faces an enhanced
mandatory minimum sentence of fifteen years. See 18
U.S.C. § 924(e)(1).
924(e) defines a “violent felony” as any crime
punishable by a term of ...