Crews v. United States of America

Filing 7

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 7/25/19. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MICHAEL CREWS,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.

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No. 15-1271-JDT-jay
Crim. No. 05-10056-01-JDT

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Before the Court is a motion pursuant to 28 U.S.C. § 2255 filed by the Movant,
Michael Crews. For the reasons stated below, the Court DENIES the § 2255 motion.
On July 18, 2005, a federal grand jury returned an indictment charging Crews in
count one with possessing a firearm after conviction of a felony, in violation of 18 U.S.C.
§ 922(g). Count three of the indictment charged Crews and two co-defendants with
knowingly receiving and possessing stolen firearms, in violation of §§ 922(j) and
924(a)(2).1 Crews entered a guilty plea to counts one and three on October 3, 2005. At

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Count two charged one of Crews’s co-defendants with a violation of § 922(g).

the sentencing hearing on January 5, 2006, the Court determined that Crews qualified for
an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
See also U.S.S.G. § 4B1.4. He was sentenced to a 180-month term of imprisonment and a
four-year term of supervised release.2 The sentence was affirmed on direct appeal. United
States v. Crews, No. 06-5133 (6th Cir. Mar. 13, 2008).
Crews subsequently filed the present motion pursuant to 28 U.S.C. § 2255,
contending that his sentence is invalid under the decision in Johnson v. United States, 135
S. Ct. 2551 (2015). (ECF No. 1.) The Bureau of Prisons Inmate Locator3 shows that Crews
was released from prison on July 3, 2018; therefore, he currently is serving his supervised
release.
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which imposed the sentence
to vacate, set aside or correct the sentence.
“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error
of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v.
United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).
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Crews was sentenced to a 180-month term of imprisonment on count one and a
concurrent term of 120 months on count three, for an effective sentence of 180 months.
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See https://bop.gov/inmateloc/.
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After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears
from the motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the motion.” Rule 4(b), Rules
Governing § 2255 Proceedings (§ 2255 Rules). “If the motion is not dismissed, the judge
must order the United States attorney to file an answer, motion, or other response within a
fixed time, or to take other action the judge may order.” Id.
Twenty-eight U.S.C. § 2255(f) contains a one-year limitations period:
(f) A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of—
....
(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;
....
The ACCA requires a fifteen-year sentence for a felon who is convicted of
unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g) and who has three prior
convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1).
The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term
exceeding one year” that (1) “has as an element the use, attempted use, or threatened use
of physical force against the person of another” (the “elements clause”), (2) “is burglary,
arson, or extortion, involves use of explosives” (the “enumerated offenses clause”), or (3)
“otherwise involves conduct that presents a serious potential risk of physical injury to
another” (the “residual clause”). Id., § 924(e)(2)(B)(i)-(ii). In Johnson v. United States,
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the Supreme Court held the ACCA’s residual clause is unconstitutionally vague and that
increasing a defendant’s sentence under the clause is, therefore, a denial of due process.
135 S. Ct. at 2563. The Supreme Court later held the decision in Johnson was retroactive
and thus applicable to cases on collateral review. Welch v. United States, 136 S. Ct. 1257
(2016). Therefore, Crews’s § 2255 motion based on Johnson is timely filed under 28
U.S.C. § 2255(f)(3).
The Presentence Report (PSR) prepared by the Probation Office in this case shows
that Crews has two prior Tennessee convictions for aggravated burglary. It previously was
the law in the Sixth Circuit that Tennessee aggravated burglary qualified as a categorical
violent felony under the ACCA’s enumerated offenses clause, not under the residual
clause. See United States v. Sawyers, 409 F.3d 732 (2005). However, the Sixth Circuit
later held, in United States v. Stitt, 860 F.3d 854, 860-61 (6th Cir. 2017) (en banc), that
Tennessee aggravated burglary was broader than generic burglary and no longer counted
as a categorical violent felony under the ACCA. Id. at 862. The Supreme Court granted
certiorari and reversed, holding that Tennessee aggravated burglary is an ACCA predicate.
United States v. Stitt, 139 S. Ct. 399, 406-08 (2018). Therefore, Crews’s prior aggravated
burglary convictions properly were counted as categorical felonies under the ACCA.
Crews also has a prior conviction for felonious escape under Tenn. Code Ann. § 3916-605. Because the escape conviction qualified as an ACCA predicate only under the
residual clause, it may no longer be counted after the decision in Johnson. However,
according to the PSR, Crews also has three prior Tennessee burglary convictions from
1993. The PSR describes those burglary convictions as involving unlawful entry into
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buildings to commit theft. (PSR ¶ 37); see Tenn. Code Ann. § 39-14-402(a)(1)-(3).
Tennessee Code Annotated § 39-14-402(c) provides that “[b]urglary under subdivision
(a)(1), (2), or (3) is a Class D felony.” The Sixth Circuit has held that all Class D burglaries
under § 39-14-402(a) are generic burglaries under the categorical approach. United States
v. Priddy, 808 F.3d 683, 684-85 (6th Cir. 2015). Crews does not argue in his § 2255 motion
that these three prior burglary convictions would not qualify as ACCA predicates even
after Johnson.
The Court concludes that Crews was properly sentenced under the ACCA and that
he is not entitled to relief based on the decision in Johnson.
Furthermore, Crews now has been released from prison. A § 2255 movant who is
serving a term of supervised release still satisfies the statute’s “in custody” requirement.
See United States v. Sferrazza, 645 F. App’x 399, 404-05 (6th Cir. 2016); see also Hampton
v. United States, 191 F.3d 695, 697 (6th Cir. 1999) (§ 2255 motion filed while the movant
was in custody does not necessarily become moot if the sentence fully expires while the
§ 2255 proceeding is pending). However, Crews challenges only his term of imprisonment
and not his conviction itself. Therefore, unless he can show some continuing adverse
consequence from the completed sentence, no meaningful relief can be granted to him and
there is no live case or controversy under Article III to be adjudicated. See United States
v. Perotti, 702 F. App’x 322, 323-24 (6th Cir. 2017) (released movant who challenged only
the length of his custodial sentence appealed ruling on § 2255 motion; Court of Appeals
held the appeal of the § 2255 motion was moot because movant could point to no
continuing adverse consequences from the completed part of his sentence); see also Lane
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v. Williams, 455 U.S. 624, 630-31 (1982) (“Since respondents elected only to attack their
sentences, and since those sentences expired during the course of these proceedings, this
case is moot.”). In this case, Crews has not attempted to show that there are any continuing
adverse consequences from his completed sentence. For that reason also, he not entitled
to relief.
For the foregoing reasons, the Court concludes that Crews is not entitled to relief in
this § 2255 proceeding. Therefore, the § 2255 motion is DENIED.
Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the
appealability of its decision denying a § 2255 motion and to issue a certificate of
appealability (COA) “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255
movant may appeal without this certificate.
A COA may issue only if the movant has made a substantial showing of the denial
of a constitutional right, and the COA must indicate the specific issue(s) which satisfy the
required showing. 28 U.S.C. §§ 2253(c)(2)-(3). A “substantial showing” is made when
the movant demonstrates that “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and citation omitted); see
also Henley v. Bell, 308 F. App’x 989, 990 (6th Cir. 2009) (per curiam) (same). Courts
should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773
(6th Cir. 2005).
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The issues raised in this § 2255 motion are not debatable for the reasons stated;
therefore, the Court DENIES a certificate of appealability. It is also CERTIFIED, pursuant
to Federal Rule of Appellate Procedure 24(a), that an appeal in this case by Crews would
not be taken in good faith. Leave to appeal in forma pauperis is DENIED. If Crews
chooses to appeal, he must either pay the full $505 appellate filing fee to this Court or file
a motion to proceed in forma pauperis and supporting affidavit directly in the Sixth Circuit
Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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