United States District Court, S.D. Ohio, Western Division, Dayton
Herbert Rice District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
§ 2255 case is before the Court for decision on the
merits. Previously the Magistrate Judge had recommended the
Motion to Vacate be dismissed (ECF Nos. 63, 66, 70), but
withdrew those Reports on May 9, 2017, and ordered the
Government to answer on the merits (ECF No. 77, reported at
United States v. Tunstall, 2017 U.S. Dist. LEXIS
70635 (S.D. Ohio 2017)).
August 23, 2000, Defendant Tunstall pleaded guilty, pursuant
to a plea agreement, to one count of armed bank robbery in
violation of 18 U.S.C. § 2113 and one count of
discharging a firearm during a crime of violence in violation
of 18 U.S.C. § 924(c)(Plea Agreement, ECF No. 11; Minute
Entry, ECF No. 12). After reviewing a Presentence
Investigation Report (“PSR”), District Judge Rice
sentenced Tunstall to two terms of 120 months each to be
served consecutively (Minutes, ECF No. 27; Judgment, ECF No.
30). Tunstall appealed, but his conviction was upheld.
United States v. Tunstall, Case No. 01-3515, 49
Fed.Appx. 581, 2001 U.S. App. LEXIS 22458 (6th
Cir. Oct 24, 2002)(copy at ECF No. 39). Tunstall filed an
initial Motion to Vacate on January 6, 2004 (ECF No. 42)
which Judge Rice dismissed on recommendation of Magistrate
Judge Ovington (ECF Nos. 47, 48, 49).
the assistance of the Federal Public Defender, Tunstall filed
his instant second-in-time § 2255 Motion on June 3, 2016
(ECF No. 56). He sought and received permission of the Sixth
Circuit to proceed on that Motion (ECF Nos. 57, 62). However,
as instructed by the circuit court, this Court further stayed
merits consideration pending a decision by the Supreme Court
in Beckles v. United States. When that decision was
announced, the Magistrate Judge vacated the stay and
recommended dismissal, based on his reading of Beckles v.
United States, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017)(ECF
No. 63). Tunstall's counsel finally persuaded the
Magistrate Judge that Beckles applied only to the
Sentencing Guidelines as they became advisory after
United States v. Booker, 543 U.S. 220 (2005).
Because Tunstall was sentenced before Booker, the
Magistrate Judge withdrew his prior Reports and
Recommendations and ordered the Government to answer (ECF No.
77). The Government has done so (ECF No. 78), Tunstall has
replied (ECF No. 80), and the Motion to Vacate is ripe for
decision on the merits.
Tunstall seeks relief from his classification as a career
offender under the pre-Booker Sentencing Guidelines
on the basis of Johnson v. United States, 135 S.Ct.
2551 (June 26, 2015), and United States v. Pawlak,
822 F.3d 902 (6th Cir. May 13, 2016).
Johnson declared the so-called residual clause of
the Armed Career Criminal Act (“ACCA”)
unconstitutionally vague; Pawlak applied
Johnson to the parallel residual clause of the
U.S.C. § 924(e), the Armed Career Criminal Act, reads in
(1) In the case of a person who violates section 922(g) of
this title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen
years, and, notwithstanding any other provision of law, the
court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g).
(2) As used in this subsection- * * *
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another [elements
clause]; or (ii)
is burglary, arson, or extortion, involves use of explosives
[enumerated offenses clause], or otherwise involves conduct
that presents a serious potential risk of physical injury to
another [residual clause];
Sentencing Guidelines definition of a career offender
parallels this definition, but requires only two qualifying
predicate offenses. Tunstall asserts that one of the prior
convictions used as a predicate - his 1994 conviction for
discharging a firearm at or into an occupied structure under
Ohio Revised Code § 2923.61 -- “no longer
qualifies to enhance Tunstall's sentence as a Career
Offender.” (§ 2255 Motion, ECF No. 56, PageID
340.) Tunstall asserts that the Sixth Circuit had previously
held “that this offense qualified as a crime of
violence only under the residual clause of the
Guidelines.” Id. at PageID 341, citing
United States v. Ruvalcaba, 627 F.3d 218, 222
(6th Cir. 2010).
further asserts that his 1997 aggravated burglary conviction
is not a qualified predicate offense because
In 1997, one could violate [Ohio Revised Code § ]
2911.11(A) in one of three ways: the offender “by
force, stealth or deception” trespasses into an
“occupied structure” to commit a criminal
offense, and the any of the following occur: (1) The offender
inflicts, or attempts or threatens to inflict physical harm
on another; (2) The offender has a deadly weapon or dangerous
ordnance as defined in section 2923.11 of the Revised Code on
or about his person or under his control. The second prong of
this statute does not contain an element of the use of force,
and the statute is broader than the generic form of burglary
because the term “occupied structure” is broader
than the generic term. Further, Ohio's aggravated
burglary statute has been determined to qualify under the
residual clause of the ACCA. See United States v.
Cooper, 302 F.3d 592, 597 (6th Cir. 2002).
two convictions are the convictions referenced in the PSR as
qualifying Mr. Tunstall for a career ...