United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
before the court is Movant David Lee Crumby's
(hereinafter “Defendant”) Second Motion to
Correct Sentence under 28 U.S.C. § 2255 (ECF No. 90).
This matter is referred to the Honorable Dwane L. Tinsley,
United States Magistrate Judge for submission of proposed
findings and a recommendation for disposition, pursuant to 28
U.S.C. § 636(b)(1)(B). For reasons appearing to the
Court, it is hereby ORDERED that the
referral of this matter to the Magistrate Judge is
Procedural History and Positions of the Parties
September 6, 2005, Defendant pled guilty, pursuant to a
written plea agreement, to one count of bank robbery in
violation of 18 U.S.C. § 2113(a). (ECF Nos. 26, 27). On
November 14, 2005, I sentenced Defendant to a 140-month term
of imprisonment, followed by a three-year term of supervised
release. (ECF No. 33). In determining Defendant's
sentence, I found that Defendant qualified as a career
offender under USSG § 4B1.1 based upon at least two
prior burglary convictions. Accordingly, his advisory
guideline range, after all adjustments, was 151- 188 months
of imprisonment. However, I ultimately varied downward and
sentenced Defendant to 140 months in prison.
initial appeal to the United States Court of Appeals for the
Fourth Circuit was voluntarily dismissed on January 6, 2006,
because Defendant unsuccessfully attempted to secure a motion
for substantial assistance. (ECF Nos. 48, 49, 90 at 4).
Defendant then filed a prior Motion to Vacate, Set Aside or
Correct Sentence under 28 U.S.C. § 2255, which resulted
in his resentencing on January 10, 2011, in order to allow
him a new period of time to file a direct appeal. (ECF Nos.
52, 66). An Amended Judgment sentencing Defendant to the same
terms as the original Judgment was entered on January 12,
2011. (ECF No. 75). Although Defendant filed another Notice
of Appeal, it was ultimately withdrawn on January 26, 2011.
(ECF Nos. 82, 84).
26, 2015, the Supreme Court decided United States v.
Johnson, 135 S.Ct. 2551 (2015), holding that the
residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague and further
finding that imposition of an increased sentence thereunder
violates due process.
April 18, 2016, the Supreme Court decided Welch v. United
States, 136 S.Ct. 1257 (2016), in which the Court
determined that Johnson changed the substantive
reach of the ACCA and, therefore, was a substantive, rather
than a procedural decision, because it affected the reach of
the underlying statute rather than the judicial procedures by
which the statute was applied. Therefore, the Court held that
Johnson announced a new substantive rule that
applies retroactively to cases on collateral review.
14, 2016, attorney Carl E. Hostler was appointed to represent
Defendant for the purpose of determining whether he qualifies
for federal habeas relief in light of Johnson. (ECF
No. 88). On June 24, 2016, Mr. Hostler filed the instant
Motion to Correct Sentence (ECF No. 90) asserting that, after
Johnson, Defendant no longer qualifies as a career
offender because, absent the residual clause therein, his
prior Mississippi and Alabama burglary convictions do not
meet the “crime of violence” definition in USSG
§ 4B1.2(a). On June 29, 2016, Defendant was authorized
by the United States Court of Appeals for the Fourth Circuit
to file a second or successive section 2255 motion asserting
a Johnson claim. (ECF Nos. 93, 94).
October 11, 2016, the United States of America (hereinafter
“the Government”) filed a Response in opposition
to Defendant's section 2255 motion. (ECF No. 105). The
Government's Response asserts: (1) Defendant's motion
is moot due to his release on supervised release; (2)
Defendant's claims are procedurally barred; (3)
Johnson does not apply to a challenge to a guideline
sentence on collateral review; and (4) Defendant's prior
convictions are enumerated offenses under the career offender
guideline, which are unaffected by Johnson.
(Id.) On December 6, 2016, Defendant, by counsel,
filed a Reply disputing each of the Government's
contentions. (ECF No. 106)
this is Defendant's second section 2255 motion, because
his first motion successfully resulted his re-sentencing,
albeit to the same terms, this court does not treat the
instant motion as a second or successive motion. See In
re Gray, 850 F.3d 139, 143 (4th Cir. 2017)
(“[W]hen a habeas petition is the first to challenge a
new judgment, it is not second or successive”) (citing
Magwood v. Patterson, 561 U.S. 320 (2010)); see
also, United States v. Jones, 681 F. App'x
294 (4th Cir. Mar. 17, 2017) (unpublished)
(extending Gray to section 2255 proceedings where
resentencing constituted intervening new judgment between
section 2255 motions).
this motion is subject to the one-year statute of limitations
set forth in 28 U.S.C. § 2255(f). The one-year period
runs from the latest of one of four specified events:
(1) the date on which the judgment on 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 such motion by governmental
action; (3) the date on which the right asserted was
initially recognized by the Supreme Court if that right has
been duly recognized by the Supreme Court and made
retroactively applicable to cases on review; or (4) the date
on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due
28 U.S.C. § 2255(f). Here, Defendant appears to rely on
the Supreme Court's decisions in Johnson and
Welch, supra, to assert a timely claim for ...