Argued: March 15, 2018
from the United States District Court for the Western
District of Tennessee at Memphis. Nos. 2:07-cr-20130-1;
2:14-cv-02339-Jon Phipps McCalla, District Judge.
ARGUED: Needum L. Germany, FEDERAL PUBLIC DEFENDER, Memphis,
Tennessee, for Appellant.
G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis,
Tennessee, for Appellee.
BRIEF: Needum L. Germany, FEDERAL PUBLIC DEFENDER, Memphis,
Tennessee, for Appellant.
G. Ritz, UNITED STATES ATTORNEY'S OFFICE,
Memphis, Tennessee, for Appellee.
Before: KEITH, KETHLEDGE, and THAPAR, Circuit Judges.
J. KEITH, Circuit Judge.
Larry Cradler ("Cradler") was sentenced as an armed
career criminal pursuant to the Armed Career Criminal Act
("ACCA"). Cradler collaterally attacked his
sentence through a motion filed pursuant to 28 U.S.C. §
2255, asking the district court to vacate his sentence and
re-sentence him. The district court denied Cradler's
motion, and this appeal followed. For the reasons set forth
below, the district court's decision is
REVERSED and the case is
2008, a jury convicted Cradler of violating 18 U.S.C. §
922(g)(1) ("§ 922(g)(1)"), which prohibits
convicted felons from possessing a firearm. This offense
typically carries a maximum imprisonment penalty of 10 years.
See 18 U.S.C. § 924(a)(2). However, under the
ACCA, a defendant who violates § 922(g)(1) after being
convicted of at least three violent felonies or serious drug
offenses becomes subject to a mandatory minimum imprisonment
penalty of 15 years. See 18 U.S.C. § 924(e)(1).
At sentencing, the district court found that Cradler had been
convicted of four violent felonies prior to violating §
922(g)(1) and, therefore, sentenced him under the ACCA, to an
imprisonment term of 222 months (18.5 years). This court
affirmed Cradler's judgment on September 9, 2011. Cradler
did not file a petition for a writ of certiorari with the
U.S. Supreme Court.
8, 2014, Cradler, through counsel, filed a motion under 28
U.S.C. § 2255 to vacate his sentence ("§ 2255
motion"). Cradler argued that, in light of the U.S.
Supreme Court's decision in Descamps v. United
States, 570 U.S. 254 (2013), two of his prior
convictions-(1) sexual battery and (2) third-degree
burglary-no longer qualified as violent felonies for ACCA
purposes. Therefore, Cradler asserted that his record no
longer contained the three violent felonies necessary to
subject him to the ACCA's mandatory minimum imprisonment
penalty. Based on this, Cradler concluded that his sentence
was in excess of the maximum authorized by law, entitling him
to a vacating of his sentence and a remand for appropriate
re-sentencing, pursuant to 28 U.S.C. § 2255.
the following 31 months, Cradler's § 2255 motion was
litigated at length in the district court. The protracted
nature of the litigation was due, in part, to the publishing
of two Supreme Court cases during that time-Johnson v.
United States, 135 S.Ct. 2551 (2015) and Mathis v.
United States, 136 S.Ct. 2243 (2016)-which Cradler used
to update, revise, and at times replace, his original
arguments. During this time, the United States conceded that
it lacked the requisite information to support the argument
that Cradler's sexual battery conviction qualifies as a
violent felony for ACCA purposes. Since that time, this
dispute has involved only Cradler's third-degree burglary
December 29, 2016, the district court denied Cradler's
§ 2255 motion on the merits, concluding that his
third-degree burglary conviction qualifies as a violent
felony. The district court also denied Cradler's motion
to proceed in forma pauperis, and declined to issue a
certificate of appealability. On July 11, 2017, this court
granted Cradler's motions for a certificate of
appealability and to proceed in forma pauperis. This appeal
appeal, Cradler argues that the district court erred in
denying his § 2255 motion because it misapplied the
proper procedure for determining if a prior conviction
qualifies as a violent felony. The United States argues that
Cradler's § 2255 motion was properly denied, for
three reasons: (1) the motion is untimely; (2) Cradler
procedurally defaulted his claim; and (3) the district court
properly determined that Cradler's third-degree burglary
offense qualifies as a violent felony.
STANDARD OF REVIEW
reviewing a district court's denial of a motion under
Section 2255, we apply a clearly erroneous standard to its
factual findings and review its conclusions of law de
novo." Braden v. United States, 817 F.3d
926, 929 (6th Cir. 2016) (quoting Hyatt v. United
States, 207 F.3d 831, 832 (6th Cir. 2000)). "This
court reviews de novo a district court's
determination regarding whether a prior conviction
constitutes a 'violent felony' under the ACCA."
Id. at 930 (quoting United States v.
Kemmerling, 612 Fed.Appx. 373, 375 (6th Cir. 2015)).
SECTION 2255 MOTIONS, TIMELINESS, AND
28 U.S.C. § 2255, a federal prisoner may move the court
to vacate, set aside, or correct his sentence if the sentence
"was imposed in violation of the Constitution or laws of
the United States, or . . . the sentence was in excess of the
maximum authorized by law . . . ." 28 U.S.C. §
2255(a). "If the court finds that . . . the sentence
imposed was not authorized by law . . . the court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate." Id. at
One-Year Limitations Period
United States' first argument against Cradler's
§ 2255 motion is that the motion is untimely. Motions
under § 2255 are subject to a one-year period of
limitation. Normally, this period runs from "the date on
which the judgment of conviction becomes final." 28
U.S.C. § 2255(f)(1). When, as here, the U.S. Court of
Appeals affirmed a criminal judgment, but the defendant did
not file a petition for a writ of certiorari with the Supreme
Court, his judgment is deemed to be final when the time for
filing such a petition expired (i.e., 90 days after the U.S.
Court of Appeals entered judgment). Clay v. United
States, 537 U.S. 522, 525, 527 (2003). Because we
affirmed Cradler's judgment of ...