                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0527n.06

                                       Case Nos. 17-6340/6343

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                      FILED
                                                                                Oct 16, 2019
UNITED STATES OF AMERICA,                              )
                                                                           DEBORAH S. HUNT, Clerk
                                                       )
        Petitioner-Appellant,                          )
                                                       )       ON APPEAL FROM THE UNITED
v.                                                     )       STATES DISTRICT COURT FOR
                                                       )       THE EASTERN DISTRICT OF
ROBBIE BATEMAN,                                        )       TENNESSEE
                                                       )
        Respondent-Appellee.                           )
                                                               OPINION


BEFORE: BOGGS, BATCHELDER, and DONALD, Circuit Judges.

        BERNICE BOUIE DONALD, Circuit Judge. Robbie Bateman (“Bateman”) pleaded

guilty to and was convicted for being a felon in possession of a firearm. Based on Bateman’s prior

convictions, the Government sought and obtained an enhanced sentence under the Armed Career

Criminal Act (“ACCA”). He was sentenced to 188 months’ imprisonment. Following the

Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) (striking down the

ACCA’s residual clause), Bateman filed for relief under 28 U.S.C. § 2255, challenging his

sentence enhancement. Bateman contended that his seven prior convictions for Tennessee-

aggravated burglary no longer qualified as violent felonies under the ACCA. The district court

stayed his petition pending the resolution of the same claim before this Court in United States v.

Stitt. 860 F.3d 854 (6th Cir. 2017) (en banc) [hereinafter Stitt I]. In Stitt I, we held that Tennessee’s
Case Nos. 17-6340/6343, United States v. Bateman


aggravated-burglary statute does not qualify as an enumerated offense under the ACCA. Id. at

857. Following Stitt I, the district court granted Bateman’s petition, vacated his original sentence,

and ordered resentencing. The Supreme Court, however, reversed the decision of the en banc

court. United States v. Stitt, 139 S. Ct. 399, 408 (2018) [hereinafter Stitt II]. The government now

appeals the district court’s granting of Bateman’s habeas petition in light of Stitt II and seeks

reinstatement of Bateman’s original sentence.

       Bateman advances two grounds opposing reversal. First, Bateman claims that Tennessee’s

definition of “entry” is broader than the ACCA’s, such that it considers attempted burglary as

completed burglary. Bateman contends that because an attempted burglary does not qualify as a

generic burglary, it does not qualify as a violent felony under the ACCA. Bateman’s position has

already been before this Court, and we are bound by our prior decisions that a violation of the

Tennessee-aggravated burglary statute qualifies as a violent felony. Brumbach v. United States,

929 F.3d 791, 795 (6th Cir. 2019); see United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007).

       Second, Bateman asserts that the approved evidence available to the government cannot

conclusively establish that his predicate offenses under the ACCA were committed on three

separate occasions, as required by 18 U.S.C. § 924(e)(1). This argument was not before the district

court in Bateman’s original petition or supplement to his petition and is raised here for the first

time. Ordinarily, “‘issues not presented to the district court but raised for the first time on appeal

are not properly before the court.’” Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993) (quoting

J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir. 1991)).

There are, to be sure, some exceptions, such as when faced with “exceptional cases,” “particular

circumstances,” or times when the rule would produce “a plain miscarriage of justice.” Pinney




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Case Nos. 17-6340/6343, United States v. Bateman


Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988) (quoting Hormel v.

Helvering, 312 U.S. 552, 558 (1941)).

       Even if Bateman’s claim was within the bounds of these narrow exceptions, it nevertheless

fails as untimely. Section 2255(f) places a one-year period of limitations on all § 2255 petitions

for relief, running from the latest of any of the following:

       (1) the date on which the judgment of conviction becomes final;

       (2) the date on which the impediment to making a motion created by governmental
           action in violation of the Constitution or laws of the United States is removed,
           if the movant was prevented from making a motion by such governmental
           action;

       (3) the date on which the right asserted was initially recognized by the Supreme
           Court, if that right has been newly recognized by the Supreme Court and made
           retroactively applicable to cases on collateral review; or

       (4) the date on which the facts supporting the claim or claims presented could have
           been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). Unlike Bateman’s original petition which, by relying on Johnson, satisfied

category three, Bateman’s new claim that he does not have three qualifying ACCA predicates does

not rely on any newly recognized right. Instead, Bateman bases his assertion on United States v.

King, 853 F.3d 267 (6th Cir. 2017), where this Court applied the standards approved in Shepard

v. United States, decided over nine years before his petition. 544 U.S. 13, 26 (2005) (limiting the

class of documents used by a court to determine of what crime and elements a defendant was

convicted).

       Because Bateman’s claim for relief on these new grounds does not meet any of the

alternative limitations periods,1 he was required to file it within one year of his conviction




1
 Bateman does not offer any reason why his § 2255 petition satisfies the second or fourth one-
year limitations categories.
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Case Nos. 17-6340/6343, United States v. Bateman


becoming final. 28 U.S.C. § 2255(f)(1). Bateman’s conviction became final on February 29,

2012. Bateman’s § 2255 motion was not filed until June 18, 2014, over two years after his

conviction became final. Therefore, Bateman’s alternative argument is untimely.

       For the foregoing reasons, we REVERSE the district court’s grant of habeas relief, and

REMAND with instructions to reinstate the original sentence.




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