United States District Court, W.D. Tennessee, Eastern Division
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
D. TODD UNITED STATES DISTRICT JUDGE.
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.
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). Crews entered a guilty plea to counts one
and three on October 3, 2005. At 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. The sentence was affirmed on direct
appeal. United States v. Crews, No. 06-5133 (6th
Cir. Mar. 13, 2008).
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
Locator shows that Crews was released from prison
on July 3, 2018; therefore, he currently is serving his
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
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).
§ 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.”
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
. . . .
(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;
. . . .
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, 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. ...