United States District Court, N.D. Texas, Dallas Division
RODNEY B. ALLEN, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
KINKEADE, UNITED STATES DISTRICT JUDGE
the Court is Rodney B. Allen's (Movant) motion to vacate,
set-aside, or correct sentence pursuant 28 U.S.C. §
2255. For the following reasons, the Court denies the motion.
jury trial, Movant was convicted of being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). He was subject to a
sentence enhancement under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), because he had a conviction
for Texas robbery and two convictions for Texas aggravated
robbery. He was sentenced to 293 months' imprisonment.
The judgment was affirmed on appeal. United States v.
Allen, 136 F.3d 137 (5th Cir. 1998), cert.
denied, 118 S.Ct. 1399 (1998). Movant's first 28
U.S.C. § 2255 motion was dismissed as barred by the
statute of limitations. Allen v. United States, No.
3:05-CV-1477-K (N.D. Tex. Jan. 16, 2006).
Fifth Circuit authorized a successive § 2255 motion on
the issue of whether his sentence under the ACCA was proper
in light of Johnson v. United States, 135 S.Ct. 2551
(2015). In re Allen, No. 16-10399 (5th Cir. Jul. 19,
2016). Although Movant is now on supervised release, his
§ 2255 motion is not moot, because if a ground regarding
alleged sentencing error has merit and the movant is on
supervised release, a court may grant relief in the form of a
reduction in the term of supervised release. See Johnson v.
Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (the possibility
that the district court may alter the period of supervised
release based on the petitioner having served excess prison
time, prevents a habeas petition from being moot).
SCOPE OF RELIEF AVAILABLE UNDER § 2255
“Relief under 28 U.S.C. § 2255 is reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice.” United States v.
Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and
internal quotation marks omitted). It is well-established
that “a collateral challenge may not do service for an
appeal.” United States v. Shaid, 937 F.2d 228,
231 (5th Cir. 1991) (en banc) (quoting United
States v. Frady, 456 U.S. 152, 165 (1982)).
ARMED CAREER CRIMINAL ACT
contends that his sentence should not have been enhanced
under the Armed Career Criminal Act (ACCA) for his prior
Texas robbery and aggravated robbery convictions.
law forbids certain people-such as convicted felons, persons
committed to mental institutions, and drug users-to ship,
possess, and receive firearms. § 922(g). In general, the
law punishes violation of this ban by up to 10 years'
imprisonment. § 924(a)(2). But if the violator has three
or more earlier convictions for a “serious drug
offense” or a “violent felony, ” [Section
924 of ] the Armed Career Criminal Act increases his prison
term to a minimum of 15 years and a maximum of life. §
924(e)(1); Johnson v. United States, 559 U.S. 133,
136, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). The Act defines
“violent felony” as follows”
any crime punishable by imprisonment for a term exceeding one
year ... that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
§ 924(e)(2)(B) (emphasis added).
Johnson, 135 S.Ct. at 2555-56. Subsection (i) is
known either as the force clause, UnitedStates
v. Lerma, 877 F.3d 628, 630 (5th Cir. 2017), or as the
elements clause, UnitedStates v. Taylor,
873 F.3d 476, 477 n.1 (5th Cir. 2017). The four offenses
listed in subsection (ii) are referred to as the
“enumerated offenses, ” see United States v.
Davis, 487 F.3d 282, 285 (5th Cir. 2007), or as the
“enumerated offenses clause, ” Taylor,
873 F.3d at 477 n.1. ...