United States District Court, E.D. Kentucky, Southern Division, London
OPINION & ORDER
E. WIER, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
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.
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. Based on state records, the trial court
concluded that the aggravated burglary convictions were for
separate burglaries and counted as distinct predicate
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. 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,
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 §
2241 petition because it is based on Sixth Circuit, rather
than Supreme Court, precedent. DE 20 at 3. The prosecution
further argues ...