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Perry v. United States

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

September 5, 2019




         The movant Torace D. Perry filed a motion to vacate, set aside, or correct his sentence on May 17, 2016, [1] 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 DENIED.

         Procedural History

         The 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 2:14-cr-131).

         The 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.

         Mr. 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 collateral review.

         Specifically, 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).

         The 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).

         The 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).

         The 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).

         After 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.


         In 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).

         Section 924(e) defines a “violent felony” as any crime punishable by a term of ...

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