United States District Court, D. South Carolina, Florence Division
L. Wooten Senior United States District Judge.
matter comes before the Court for consideration of the
petition to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 filed by Petitioner Tracy Jarvis
Allen. For the reasons stated below, the petition is denied.
Factual and Procedural History
was charged with and convicted at trial of being a felon in
possession of a firearm, and the Court sentenced him to 288
months incarceration. ECF No. 40.
sentencing, Petitioner was classified as an armed career
criminal under the Armed Career Criminal Act (ACCA), which
imposes a mandatory minimum fifteen-year sentence on a felon
who possesses a firearm and who has three or more prior
convictions for committing certain drug crimes or
“violent felon[ies].” 18 U.S.C. §
924(e)(1). His Presentence Investigation Report (PSR)
classified the following convictions as ACCA predicate
(1) Armed Robbery (PSR ¶ 28 - Docket No. 96-JU-16-163);
(2) Armed Robbery (PSR ¶ 28 - Docket No. 96-JU-16-164);
(3) Criminal Domestic Violence of a High and Aggravated
Nature (CDVHAN) (PSR ¶ 30);
(4) Threaten the Life, Person, or Family of Public Employee
(PSR ¶ 31);
(5) Failure to Stop for a Blue Light (FSBL) (PSR ¶ 32).
judgment was entered, he filed a direct appeal, but the
Fourth Circuit summarily affirmed. United States v.
Allen, No. 05-4829 (4th Cir. Jan. 30, 2006).
filed a prior § 2255 petition, which the Court denied on
the merits. ECF Nos. 53, 67. He filed a direct appeal, but
the Fourth Circuit declined to issue a certificate of
appealability and dismissed the appeal. United States v.
Allen, 315 Fed.Appx. 485 (4th Cir. 2009).
March 14, 2016, Petitioner filed in the Fourth Circuit a
motion pursuant to 28 U.S.C. § 2244 requesting
permission to file a successive § 2255 petition. No.
16-245 (4th Cir.), ECF No. 2. The Fourth Circuit granted that
motion on May 10, 2016, No. 16-245 (4th Cir), ECF No. 13, and
his § 2255 petition was filed in this Court that day,
ECF No. 105.
Petitioner's § 2255 petition, he challenges each of
his predicate convictions, asserting that, in light of
Johnson v. United States, 135 S.Ct. 2551 (2015) and
other cases, none of these convictions remain ACCA predicate
offenses. Thus, he argues that he no longer has the requisite
No. of ACCA predicate convictions and is therefore entitled
to a resentencing without the ACCA enhancement. The
Government filed a motion to dismiss, asserting that the two
armed robberies, CDVHAN, and threatening a public official
convictions still qualify ...