MEMORANDUM

WILLIAM L. CAMPBELL, JR., District Judge.

I. Introduction

This case has been reassigned to the undersigned Judge.

Pending before the Court are Petitioner's Motion to Vacate, Set Aside or Correct Sentence in Accordance With 28 U.S.C. § 2255 (Doc. No. 1); the Government's Response (Doc. No. 8); and Petitioner's Reply (Doc. No. 12). For the reasons set forth below, Petitioner's Motion (Doc. No. 1) is DENIED, and this action is DISMISSED.

II. Petitioner's Criminal Proceedings

Petitioner was convicted, after a jury trial held before now-retired Judge William J. Haynes, Jr., of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Doc. Nos. 61, 62 in Case No. 1:04cr00009); United States v. Murphy, 278 Fed. Appx. 278 (6th Cir. May 19, 2008). In the Presentence Investigation Report, the Probation Office determined Petitioner qualified for a 15-year mandatory minimum sentence as an Armed Career Criminal based on the following prior Tennessee convictions: two counts of third-degree burglary and one count of arson, all in 1988. (Doc. No. 97 ¶¶ 20, 31 in Case No. 1:04cr00009). At the subsequent sentencing hearing, on July 8, 2005, Judge Haynes agreed that Petitioner was an Armed Career Criminal and his sentencing guideline range was 210 to 262 months of imprisonment. (Doc. Nos. 90, 111 in Case No. 1:04cr00009). Judge Haynes sentenced Petitioner to 210 months of imprisonment. (Doc. Nos. 86, 111 in Case No. 1:04cr00009). On appeal, the Sixth Circuit affirmed Petitioner's conviction and sentence. (Doc. No. 112 in Case No. 1:04cr00009); Murphy, 278 Fed. Appx. at **5.

III. Analysis

A. Section 2255 Proceedings

Petitioner has brought this action pursuant to 28 U.S.C. § 2255. Section 2255 provides a statutory mechanism for challenging the imposition of a federal sentence:

28 U.S.C. § 2255(a). In order to obtain relief under Section 2255, a petitioner "`must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'" Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

If a factual dispute arises in a § 2255 proceeding, the court is to hold an evidentiary hearing to resolve the dispute. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). An evidentiary hearing is not required, however, if the record conclusively shows that the petitioner is not entitled to relief. 28 U.S.C. § 2255(b); Ray, 721 F.3d at 761; Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). A hearing is also unnecessary "`if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Monea v. United States, 914 F.3d 414, 422 (6th Cir. 2019) (quoting Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007)).

Having reviewed the record in Petitioner's underlying criminal case, as well as the filings in this case, the Court finds it unnecessary to hold an evidentiary hearing because the records conclusively establish Petitioner is not entitled to relief on the issues raised.

B. Petitioner's Johnson Claim

Petitioner argues his sentence should be vacated based on the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L. Ed. 2d 569 (2015). In Johnson, the Supreme Court held the so-called "residual clause" of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), to be unconstitutionally vague. The ACCA imposes a 15-year mandatory minimum sentence for defendants convicted of certain firearms offenses who have three previous convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e)(1). The "residual clause" is part of the italicized definition of "violent felony" as set forth below:

(emphasis added). The Johnson Court specifically explained its decision did not call into question the remainder of the Act's definition of "violent felony" or the definition of "serious drug offense" in the ACCA. 135 S. Ct. at 2563. In Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held the Johnson decision announced a substantive rule that applies retroactively on collateral review.

Petitioner argues that, in the absence of the residual clause, his prior convictions for arson and third-degree burglary no longer qualify as "violent felonies" under the ACCA, and he is no longer subject to the ACCA's 15-year mandatory minimum sentence. In its Response, the Government argues Petitioner's prior convictions constitute "violent felonies" under the definition's "enumerated offense" clause.

As set forth above, the "enumerated offense" clause includes both burglary and arson. The Supreme Court has held that in listing these crimes, Congress was referring to their "generic" versions. Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). In determining whether a prior conviction fits within the generic version of one of the enumerated offenses, courts are to use the "categorical approach," which focuses on the statute defining the offense rather than the facts underlying the prior conviction. Id. If the statute "sets out a single (or `indivisible') set of elements to define a single crime," then the court simply compares those elements to the elements of the generic offense to see if they match. Id. If the elements of the statute include a wider range of conduct than the generic offense, the prior conviction cannot count as an ACCA predicate. 136 S. Ct. at 2248-49.

If a statute is "divisible," in that it lists elements in the alternative to define multiple crimes, however, courts are to use the "modified categorical approach." Id., at 2249. Under that approach, "a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). Once the crime of conviction is determined, the court can then make the comparison of elements required by the categorical approach. Id.

Petitioner contends that, at the time of his arson conviction in 1988, the statute under which he was convicted was analogous to the current version of the statute codified at Tennessee Code Annotated Section 39-14-301(a), which provides: "A person commits an offense who knowingly damages any structure by means of a fire or explosion: (1) Without the consent of all persons who have a possessory, proprietary or security interest therein; or (2) With intent to destroy or damage any structure to collect insurance for the damage or destruction or for any unlawful purpose." Petitioner argues that a Tennessee Criminal Court of Appeals opinion, State v. Phillips, 2015 WL 2374596 (May 15, 2015), interprets this statute more broadly than the generic definition of arson by holding the mens rea requirement can be satisfied when a defendant intends only to start the fire itself, and does not require that the defendant intentionally start a fire with the purpose of damaging property. In Phillips, the state appeals court held there was sufficient evidence to demonstrate the defendant "knowingly" damaged the victim's home by fire because the defendant acted with an awareness that by setting the victim on fire, a fire was reasonably certain to cause damage to the victim's residence. Id., at *4.

The arson statute cited by Petitioner did not take effect, however, until after Petitioner's conviction, on November 1, 1989. 1989 Tenn. Pub. Acts, c. 591, §§ 1, 121. The prior version of the statute, under which Petitioner was convicted, provides: "Any person who willfully and maliciously sets fire to or burns, causes to be burned, or who aids, counsels or procures the burning of any house or outhouse, or any building, or any other structure, the property of himself or of another shall be guilty of arson . . ."1 Tenn. Code Ann. § 39-3-202 (1982).

The Sixth Circuit has held that generic arson is "the intentional or malicious burning of any property." United States v. Gatson, 776 F.3d 405, 410 (6th Cir. 2015). The Tennessee statute includes these elements.2 Petitioner has not shown the interpretation of the newer version of the statute at issue in State v. Phillips, supra, applies to the language of the previous version. Even if it did, however, the Court is unpersuaded that the proposition articulated in Phillips — a person commits arson if he or she acted with an awareness that setting a fire was reasonably certain to cause damage to the structure — makes the statute broader than generic arson. In United States v. Misleveck, 735 F.3d 983, 986-88 (7th Cir. 2013), the Seventh Circuit explained that the mens rea for generic arson includes the "conscious disregard of a risk." That mens rea, the court concluded, is similar to the mens rea under the Wisconsin arson statute, which applies to a defendant who is "aware that his or her conduct is practically certain to cause that result." Id., at 987. There is little difference between the phrase "practically certain to cause" discussed in Misleveck, and the phrase "reasonably certain to cause" used in Phillips. Thus, the Court concludes the mens rea described in Phillips does not make the Tennessee statute broader than the generic version of arson. Accordingly, Petitioner's arson conviction qualifies as a "violent felony" under the ACCA's enumerated offense clause.

Petitioner also argues his two third-degree burglary convictions do not qualify under the ACCA's enumerated offense clause because the Tennessee statute is broader than generic burglary. Petitioner contends that third-degree burglary, at the time he was convicted in 1988, was defined in Tennessee Code Annotated Section 39-3-404, which provides as follows:

According to Petitioner, the statute is divisible, and therefore, the Court may consult the Shepard documents for the underlying convictions to determine which subsection applied. Petitioner construes the the language of the indictments for his two burglary convictions as potentially applying to both subsections (a)(1) or (b)(1), and because subsection (b)(1) is broader than generic burglary, Petitioner concludes his burglary convictions do not qualify as violent felonies under the enumerated offense clause.

The Court is not persuaded by Petitioner's conclusion. First, it is reasonable to assume the title of the statute refers to two separate crimes set forth in the two separate subsections, i.e. the first subsection, (a)(1)-(4), is "third-degree burglary" and the second subsection, (b)(1)-(2), is "safecracking." Petitioner's convictions are for the former, not the latter.

Even if that were not the case, however, the allegations in the charging documents at issue track the language of Subsection (a)(1).4 Petitioner was convicted of these allegations, as charged, and neither indictment refers to "opening a vault, safe or other secure place." See, e.g., Cradler v. United States, 891 F.3d 659, 669 (6th Cir. 2018) (consulting charging document in determining that defendant was convicted of the first subsection of the statute: "The indictment makes no mention of a vault, safe, or other secure place.").

Petitioner also argues the statute, regardless of the subsection, is broader than generic burglary because the Tennessee Supreme Court construes it as applying to "technical burglaries, including the example `where a person left in charge of a house enters, and steals from, a closed room which from his employment, he has no right to enter.'" (Doc. No. 12, at 7 (quoting Page v. State, 98 S.W.2d 98, 99 (Tenn. 1936)). Indeed, the Sixth Circuit agreed with this reasoning in Cradler v. United States, supra, and held the first subsection of the statute is broader than generic burglary because it "encompasses conduct undertaken when someone is lawfully inside a building." 891 F.3d at 671.

On June 10, 2019, however, the Supreme Court issued a decision rejecting this narrower view of generic burglary. In Quarles v. United States, 139 S.Ct. 1872 (2019), the Court held that "remaining in" burglary statutes are not broader than generic burglary under the enumerated offense clause of the ACCA:

Id., at 1875. Based on this reasoning, the Court concludes the interpretation of the Tennessee third-degree burglary statute to include one who forms the intent to commit a crime after lawfully entering a building, see Page v. State, 98 S.W.2d at 99, does not render the statute broader than generic "remaining in" burglary. Accordingly, Petitioner's third-degree burglary convictions qualify as "violent felonies" under the enumerated offense clause of the ACCA.

Having determined that Petitioner's two prior convictions for third-degree burglary and one conviction for arson qualify as "violent felonies," Petitioner remains an Armed Career Criminal without regard to the residual clause invalidated by Johnson.

IV. Conclusion

For the reasons set forth above, the Court concludes Petitioner's request for Section 2255 relief is without merit. Accordingly, Petitioner's motion to vacate is denied, and this action is dismissed.

If Petitioner gives timely notice of an appeal from the Court's Memorandum and Order, such notice shall be treated as an application for a certificate of appealability, 28 U.S.C. § 2253(c), which will not issue because Petitioner has failed to make a substantial showing of the denial of a constitutional right. Castro v. United States, 310 F.3d 900 (6th Cir. 2002).

It is so ORDERED.