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Crews v. United States

United States District Court, W.D. Tennessee, Eastern Division

July 25, 2019

MICHAEL CREWS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          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

          JAMES D. TODD UNITED STATES DISTRICT JUDGE.

         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 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 Locator[3] 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).

         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, 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. ...


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