Ramey v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

TERIOUS RAMEY, )

) NO. 3:22-cv-00378

v. )

) JUDGE CAMPBELL

UNITED STATES OF AMERICA )

MEMORANDUM

Pending before the Court is Petitioner’s Motion (Doc. No. 1) and Supplemental Motion

(Doc. No. 20) to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, which are fully

briefed. (Doc. Nos. 6, 11, 24, 28). For the reasons stated herein, the Motions will be denied.

I. BACKGROUND1

In September 2018, Petitioner was indicted for allegedly possessing a firearm and

ammunition as a convicted felon on June 4, 2018, in violation of 18 U.S.C. § 922(g)(1). (CR Doc.

No. 16). In September 2019, a jury convicted Petitioner of being a felon in possession of a firearm

and ammunition under 18 U.S.C. § 922(g)(1). The Presentence Investigation Report (“PSR”)

recommended that the undersigned sentence Petitioner as an Armed Career Criminal under 18

U.S.C. § 924(e) because he had at least three prior convictions for a violent felony, which occurred

on different occasions. (PSR, CR Doc. No. 115 at ¶ 27). The PSR identified three 2012 aggravated

burglary convictions in Davidson County, Tennessee that qualified as violent felonies under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). (Id.).2 Those three Tennessee

1 Citations to the underlying criminal record, United States v. Terious D. Ramey, Case No. 3:18-cr-

00237, are cited as “CR Doc. No. ____.” Unless otherwise stated, all citations to “Doc. No. ___” are to the

instant habeas case.

2 The PSR identified a fourth aggravated burglary conviction in Davidson County, Tennessee, but

could not discern whether his third aggravated burglary conviction occurred on the same occasion. (Id.).

offenses for aggravated burglary occurred in 2012 on August 22, 23, and 27, respectively. (Id. at

¶ 38). Individuals found to be Armed Career Criminals are subject to a mandatory sentence of not

less than fifteen years (180 months). (18 U.S.C. § 924(e)). The PSR calculated an advisory

Sentencing Guidelines Range of 235 to 293 months’ incarceration, based on a total offense level

of 33 and criminal history category VI. (CR Doc. No. 115 at 31). In January 2020, the undersigned

found that Petitioner was subject to the penalty enhancement under Section 924(e) of ACCA based

on Petitioner’s three prior aggravated burglary convictions and sentenced him to 204 month’s

imprisonment. (CR Doc. No. 112). Petitioner timely appealed his convictions, which the Sixth

Circuit affirmed. (CR Doc. Nos. 114, 131).

Petitioner now seeks to vacate, set aside, or correct his sentence pursuant to Section 2255,

arguing that his enhanced sentence under the ACCA was erroneous. Petitioner contends that his

sentencing and appellate counsel were ineffective for failing to challenge the determination that

he was an Armed Career Criminal. (Doc. No. 1).3 In his supplemental briefing, Petitioner argues

the determination that he qualified as an Armed Career Criminal was unlawful under Erlinger v.

United States, 144 S. Ct. 1840 (2024) and that his convictions under Section 922(g) are

presumptively unlawful under New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1

(2022). (Doc. No. 20).4

3 In his supplemental briefing, Petitioner also argues his attorneys were ineffective for failing to

challenge the determination that he was an Armed Career Criminal under Supreme Court cases from 1943,

2008, and 2010. (See Doc. No. 20-1). However, the Court did not grant Petitioner leave to supplement his

2255 with these claims. (See Doc. No. 19 (granting leave to supplement to add claims regarding Erlinger

and Bruen)). Accordingly, the Court does not consider these claims.

4 The Sixth Circuit has already held that Section “922(g)(1) is constitutional on its face and as applied

to dangerous people” and that a person convicted of burglary “is ‘dangerous,’ and can thus be disarmed[.]”

United States v. Williams, 113 F.4th 637, 662–63 (6th Cir. 2024). Accordingly, Petitioner’s constitutional

challenge to Section 922(g)(1) as applied to him is foreclosed under Sixth Circuit precent.

II. LEGAL STANDARD

Petitioner brings this action pursuant to 28 U.S.C. § 2255, which provides a statutory

mechanism for challenging the imposition of a federal sentence:

A prisoner in custody under sentence of a court established by Act of

Congress claiming the right to be released upon the ground that the sentence

was imposed in violation of the Constitution or laws of the United States, or

that the court was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack, may move the court which imposed the sentence

to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

If a factual dispute arises in a Section 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). 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 disposition of Petitioner’s claim does not require the resolution of any factual dispute

III. ANALYSIS

Petitioner seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255,

on the grounds that his enhanced sentence under the ACCA was erroneous.5 The Government

argues Plaintiff’s claims – except for his claim based on Erlinger – should be denied for procedural

default because he failed to raise them in his appeal. (See Doc. Nos. 6, 24). It argues Petitioner’s

Erlinger claim should be denied because Erlinger cannot apply retroactively. For the reasons

5 Petitioner also claims that his sentence enhancement for having a firearm violates his Fifth

Amendment due process rights. However, as the Government correctly points out, “[a] prior conviction for

possessing a firearm did not factor into Ramey’s armed career criminal sentencing enhancement.” (Doc.

No. 6 at 8).

stated herein, the Court finds that Petitioner has failed to show that he is entitled to relief under

Section 2255 on his asserted claims.

A. Procedurally Defaulted Claims

“An individual in federal custody may not obtain relief under § 2255 with respect to a

procedurally defaulted claim.” Witham v. United States, 97 F.4th 1027, 1031 (6th Cir. 2024) (citing

Reed v. Farley, 512 U.S. 339, 353–54 (1994)). Such an individual “may avoid a procedural default

by offering a sufficient excuse for their failure to timely raise a claim (showing ‘cause’) and

explaining why they would be harmed if they could not belatedly assert it (showing ‘prejudice’).”

Wallace v. United States, 43 F.4th 595, 602 (6th Cir. 2022) (citing citation omitted).

Criminal defendants have a constitutional right to effective assistance of counsel. See

Strickland v. Washington, 466 U.S. 668, 686 (1984). Ineffective assistance of counsel can

constitute cause for a procedural default, for purposes of pursuing waived claims through a

collateral attack under a motion to vacate, set aside or correct sentence. See Wallace, 43 F.4th at

602 (citing Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013); Elzy v. United States, 205

F.3d 882, 884 (6th Cir. 2000); Hall v. Vasbinder, 563 F.3d 222, 237 (6th Cir. 2009)). “This excuse

requires prisoners to show both that an attorney performed incompetently and that this legal

malpractice prejudiced them.” Wallace, 43 F.4th at 602 (citation omitted).

“To establish deficient performance, a petitioner ‘must identify the acts or omissions of

counsel that are alleged not to have been the result of reasonable professional judgment.’” Gilbert

v. United States, 64 F.4th 763, 771 (6th Cir. 2023) (quoting Strickland, 466 U.S. at 690). Here,

Petitioner identifies his attorneys’ failure to challenge the application of the Armed Career

Criminal sentencing enhancement. See Phillips v. White, 851 F.3d 567, 578 (6th Cir. 2017) (failure

by counsel to raise an argument that could reduce a defendant's sentence may constitute deficient

performance, as an element of an ineffective-assistance-at-sentencing claim).

Petitioner claims the law at the time of his conviction in 2019 and sentencing in 2020

yielded a higher sentencing range than what he would have faced under the law at the time of his

offense conduct in 2018. (See PSR, CR Doc. No. 115 at ¶¶ 26, 27) (offense level 20 without ACCA

enhancement; offense level 33 with ACCA enhancement).6 According to Petitioner, application

of the ACCA sentencing enhancement violates his constitutional rights under the ex post facto

clause and his counsels’ performances were deficient (at sentencing and on appeal) for failing to

raise an argument that could have reduced his sentence – specifically that his 2012 aggravated

burglary convictions were not predicate offenses under the ACCA.

The Government disagrees, arguing the ex post facto clause is not applicable because a

change in circuit precedent does not constitute a change in Section 924(e) of the ACCA. And it

correctly notes that Section 924(e) itself has not changed at any point during this case or

Petitioner’s underlying criminal case. Additionally, the Court notes that the Supreme Court has

recognized that “the constitutional prohibition on ex post facto laws applies only to penal statutes

which disadvantage the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41 (1990).

Because the ex post facto clause does not apply to changes in caselaw, Petitioner’s counsel

was not ineffective for failing to raise such an argument. And because Petitioner has failed to show

that counsel performed deficiently, he has failed to show cause for procedural default for purposes

6 In 2007, the Sixth Circuit held that an aggravated-burglary conviction under Tennessee law fell

within the ACCA. See United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007). In 2017, an en banc Sixth

Circuit reversed course and held that Tennessee aggravated burglary is not a violent felony under ACCA.

United States v. Stitt (Stitt I), 860 F.3d 854, 856 (6th Cir. 2017). In December 2018, the U.S. Supreme Court

reversed Stitt I, and, about six months later, the Sixth Circuit “foreclosed further challenges to Tennessee

aggravated burglary's status as a violent felony under the Armed Career Criminal Act in Brumbach v. United

States.” Mitchell v. United States, 43 F.4th 608, 611 (6th Cir. 2022) (citing 929 F.3d 791, 794 (6th Cir.

2019) (holding that Nance, which predated Stitt I, is “again the law of this circuit”)). Accordingly, Petitioner

is correct that Tennessee aggravated burglary was not a predicate offense under the ACCA at the time of

his offense conduct in 2018, but it was by the time he went to trial in September 2019.

of pursuing waived claims through the present motion.

Subsequent authority from the Sixth Circuit and the U.S. Supreme Court confirms that the

ACCA sentencing enhancement was properly applied in Petitioner’s case. Last year, the Supreme

Court considered the “question whether a state crime constitutes a ‘serious drug offense’ if it

involved a drug that was on the federal schedules when the defendant possessed or trafficked in it

but was later removed” for purposes of application of the ACCA. See Brown v. United States, 602

U.S. 101, 105 (2024). The Court held that a “state drug conviction counts as an ACCA predicate

if it involved a drug on the federal schedules at the time of that offense.” Id. at 123. “[T]he Court

reasoned that because a defendant's ‘history of criminal activity does not cease to exist merely

because the crime was later redefined,’ it made the most sense to determine ‘whether a prior

offense met ACCA's definition of seriousness—and thus suggested future danger—at the time it

was committed[.]’” United States v. Wilkes, 133 F.4th 600, 604 (6th Cir.), cert. denied, 145 S. Ct.

2785 (2025) (quoting Brown, 602 U.S. at 113-14) (internal citations omitted); see also United

States v. Clark, 46 F.4th 404, 415 (6th Cir. 2022) (“…the district court properly enhanced Clark's

sentence under § 4B1.1(a) because courts must define the term “controlled substance offense” in

the Guidelines with reference to the law in place at the time of the prior conviction at issue.”).

At the time of Petitioner’s three aggravated burglaries in August 2012, Tennessee

aggravated burglary was a predicate offense under the ACCA. See United States v. Nance, 481

F.3d 882 (6th Cir. 2007). Accordingly, under the reasoning of Brown and Clark, Petitioner’s 2012

aggravated burglary convictions constituted predict offenses under the ACCA at the time of his

2020 sentencing because those convictions constituted predict offenses at the time of the offense

conduct in 2012.

B. Erlinger v. United States

In Erlinger, the Supreme Court held that the question of whether predicate offenses

occurred on separate occasions is a question of fact that must be determined by a unanimous jury

beyond a reasonable doubt. 602 U.S. 821, 835 (2024). As noted above, Petitioner was convicted

after a jury trial, but the undersigned decided the different occasions inquiry at sentencing. There

is no dispute that Erlinger makes clear that the different occasions inquiry must be decided by a

jury (or conceded by the defendant). See United States v. Cogdill, 130 F.4th 523, 527 (6th Cir.

2025). Rather, the Government argues this claim should be denied because Erlinger announced a

new rule of criminal procedure and therefore cannot be applied retroactively on collateral review

of Petitioner’s conviction and sentencing. (See Doc. No. 24 at 5 (citing Goode v. United States,

305 F.3d 378, 383 (6th Cir. 2002)).

“In Teague v. Lane, 489 U.S. 288, 310–13, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the

Supreme Court articulated two exceptions to the general rule of non-retroactive application for

new rules of criminal procedure.” Goode, 305 F.3d at 383. Under Teague, Erlinger “should be

applied retroactively only if the decision is understood to have created a new ‘watershed’ rule of

criminal procedure that implicates the fundamental fairness and accuracy of the criminal

proceeding.” Id. at 384–85. “The [U.S. Supreme] Court has identified only one pre-Teague

procedural rule as watershed: the right to counsel recognized in the Court's landmark decision in

Gideon v. Wainwright, 372 U.S. 335, 344–345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).” Edwards v.

Vannoy, 593 U.S. 255, 267 (2021) (“The Court has never identified any other pre-Teague or post-

Teague rule as watershed. None.”). “Moreover, the [U.S. Supreme] Court has flatly proclaimed on

multiple occasions that the watershed exception is unlikely to cover any more new rules.” Id. In

light of the foregoing, the Government appears to be correct that the rule announced in Erlinger is

not retroactive on collateral review. Accordingly, Petitioner is not entitled to relief under Section

2255 on this basis.

Nor is Petitioner entitled to relief based on ineffective assistance of counsel for failing to

challenge the sentencing enhancement based on the constitutional principles applied in Erlinger.

First, Petitioner would be hard pressed to argue that his attorney should have predicted the

decision. See Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 288 (6th Cir. 2010)

(“Counsel is not ineffective for failing to predict developments in the law, unless they were clearly

foreshadowed by existing conditions.”). Second, to obtain relief based on ineffective assistance of

counsel, Petitioner would have to show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. A reasonable probability is “a probability sufficient to undermine confidence in the

outcome.” /d. at 669. Here, Petitioner does not contend the results of the proceeding would have

been different had a jury decided questions of fact related to his ACCA designation.

IV. CONCLUSION

For the reasons stated, Petitioner’s Motion and Supplemental Motion to Vacate, Set Aside,

or Correct Sentence under 28 U.S.C. § 2255 (Doc. Nos. 1, 20) will be DENIED and DISMISSED.

An appropriate order will enter.

he ZC. Lip

Mon: CAMPBELL, Jk

CHIEF UNITED STATES DISTRICT JUDGE