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Fraker v. Butler

United States District Court, E.D. Kentucky, Southern Division, London

July 23, 2019

EDDIE GENE FRAKER, Petitioner,
v.
SANDRA BUTLER, Warden, Respondent.

          OPINION & ORDER

          ROBERT E. WIER, UNITED STATES DISTRICT JUDGE

         Federal inmate Eddie Gene Fraker challenges his sentence under § 2241. DE 19 (Supplemental Petition); see also DE 1 (Petition). The Government responded, DE 20, and Fraker replied, DE 21. This matter stands ripe for review.

         I

         Before addressing Fraker's current claim, a brief detour to address case posture in this District: Fraker (previously convicted and sentenced federally in Tennessee) initially challenged his sentence based on United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc). DE 1 (Petition). The Court ordered the Government to respond but noted that Fraker's counsel failed to advise that the Supreme Court had already granted certiorari to review Stitt. DE 6 (Order). Thus, the Court directed the Government to state its position as to proper treatment pending the Supreme Court's review. Id. The Government then conceded Fraker's entitlement to relief under the Sixth Circuit's Stitt holding. DE 10 (Resp.). Although the Government contended that Stitt was wrong, it argued that concerns regarding Fraker's potential to overserve warranted granting the petition without awaiting the Supreme Court's decision. Id.

         However, four days after briefing concluded, see DE 13 (December 6, 2018, Reply), the Supreme Court unanimously reversed the Sixth Circuit's decision. See United States v. Stitt, 139 S.Ct. 399 (2018). With Fraker's sole ground for relief vitiated, the Government filed an amended response opposing the petition. See DE 14 (Am. Resp.). Fraker then abandoned his Stitt claim and pivoted to an entirely new theory. See DE 15 (Reply to Am. Resp.) at 1-2. It is that claim, asserted via supplemental petition, DE 19, and briefed by the parties, DE 20 & 21, to which the Court now turns.

         II

         In the Eastern District of Tennessee and pursuant to a plea agreement, Fraker pleaded guilty to possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g), exchanged for the Government's motion to dismiss three like charges. United States v. Fraker, No. 3:08-cr-36-PLR-CCS-1 (E.D. Tenn. 2008) (“Fraker I”), ECF No. 37 (Plea Agreement). The agreement noted that Fraker faced variable penalties depending on the trial court's determination regarding Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), applicability. Plea Agreement at ¶ 1(a). Fraker admitted multiple prior Tennessee felony convictions, including: two counts of Aggravated Burglary in No. 77313 (Knox Co. 2003); Theft and Forgery in No. 69952 (Knox Co. 2000); Robbery, Vehicle Burglary, and Forgery in No. 70211 (Knox Co. 2000); and Attempted Burglary - Other than Habitation in No. 240-2003 (Sumner Co. 2005). Id. at ¶ 4(b). Fraker also waived his collateral attack rights with two exceptions: a § 2255 motion based on ineffective assistance of counsel or prosecutorial misconduct. Id. at ¶ 12(b).[1]

         The PIR concluded that at least three (robbery, two counts of aggravated burglary, and attempted burglary) of Fraker's state convictions qualified as ACCA violent felonies and thus, under 18 U.S.C. § 924(e), Fraker was an armed career criminal, subject to a mandatory 15-year minimum. DE 9 at ¶¶ 22, 61-62 (PIR). At sentencing, Fraker argued that his attempted burglary and robbery convictions did not qualify as ACCA predicates, Fraker I, ECF No. 52 at 2-3 (Sentencing Memo.) and (mildly) contended that his two aggravated burglary convictions should only count once because he committed both offenses on the same day. Id. at ECF No. 54 at 5 (Sentencing Tr.). The trial court continued the hearing and ordered supplemental briefing on these issues. Id. at 19. The Government, lacking documentation of the state proceedings, did not push the attempted burglary as a potential predicate. Id. at ECF No. 56 at 6 (Gov. Resp. to Def. Obj.). However, the prosecution maintained that Fraker's robbery and two aggravated burglary convictions amounted to three ACCA qualifying violent felonies. Id. at 2-5.

         At the continued sentencing, the trial court concluded that Tennessee robbery qualified as a violent felony. Id. at ECF No. 61 at 11-14 (Sentencing Tr.). With respect to the aggravated burglary convictions, records from the Tennessee prosecution contained the following allegations:

Count One occurred on September 26th, 2002, and Count One states that: on or about the 26th day of September, 2002, in the state and county aforesaid, the Defendant did unlawfully and knowingly enter the habitation of Stephanie Goins without her effective consent, not open to the public, with intent to commit theft, in violation of TCA 39-14-403, and against the peace and dignity of the State of Tennessee.
In Count Two . . . the information reflects that on or about the 26th day of September, 2002, in the state and county aforesaid, the Defendant did unlawfully and knowingly enter the habitation of Dirk Dandy (phonetic) without his effective consent, not open to the public, with intent to commit theft, in violation of TCA 39-14-403, and against the peace and dignity of the State of Tennessee.

Id. at 8-9.[2] Based on state records, the trial court concluded that the aggravated burglary convictions were for separate burglaries and counted as distinct predicate offenses:

The acts supporting Defendant's aggravated burglary convictions were committed at separate locations. It does not matter that the burglaries were committed on the same day. The fact that they were committed at separate residences is enough to constitute separate offenses for purposes of classifying the Defendant as an armed career criminal.

Id. at 15. This analysis focused on the § 924(e)(1) requirement that the predicates have been “committed on occasions different from one another.” Accordingly, the trial court applied the ACCA and sentenced Fraker to a 180-month mandatory minimum term. Id. at 16, 18.[3] Fraker challenged the ACCA enhancement on direct appeal, but the Sixth Circuit rejected his contentions and affirmed the sentence. United States v. Fraker, 458 Fed.Appx. 461, 464 (6th Cir. 2012) (“Because the district court correctly found that Fraker's robbery and two counts of aggravated burglary convictions were predicate offenses under the ACCA, Fraker's 180-month sentence is proper.”). Fraker, via an April 2014 original § 2255 motion and again through an October 2015 amendment, challenged the ACCA enhancement under, respectively, Descamps v. United States, 133 S.Ct. 2276 (2013) and Johnson v. United States, 135 S.Ct. 2551 (2015). See Fraker I, at ECF No. 69 (Motion to Vacate) & 77-1 (Proposed Amended Motion). The trial court found that, without resort to the Johnson-invalidated residual clause, Fraker had three predicate convictions for categorically qualifying ACCA crimes of violence and dismissed Fraker's motion. See Fraker I, at ECF No. 81 (Mem. Opinion). Finally, the Sixth Circuit, finding that the effort, to the extent it relied on Mathis v. United States, 136 S.Ct. 2243 (2016), did not advance a newly announced “rule of constitutional law[, ]” denied Fraker authorization to proceed with a second or successive § 2255 motion. In re: Eddie Gene Fraker, No. 16-6114 (Jan. 12, 2017, Order).

         III

         Here, Fraker contends that the Sixth Circuit's decision in United States v. King, 853 F.3d 267 (6th Cir. 2017) rendered erroneous the trial court's conclusion that Fraker committed both September 2002 aggravated burglaries “on occasions different from one another.” DE 19. King held that a sentencing court may consider only the materials authorized in Shepard v. United States, 125 S.Ct. 1254 (2005) to make the “occasions different” determination; per Fraker, the Shepard materials available to the trial court did not (and do not) establish that he committed two distinct burglaries. Id. In response, the Government contends that Fraker cannot bring his King claim in a ยง 2241 petition because it is based on Sixth Circuit, rather than Supreme Court, precedent. DE 20 at 3. The prosecution further argues ...


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