United States District Court, S.D. Georgia, Waycross Division
LISA GODBEY WOOD, Chief District Judge.
Presently before the Court are Petitioner Mark Crews' ("Crews") Objections to Magistrate Judge James E. Graham's Report and Recommendation. Dkt. No. 6. After an independent and de novo review of the entire record: Crews' Objections, dkt. no. 9, are OVERRULED; the undersigned concurs with the Magistrate Judge's Report and Recommendation; the Magistrate Judge's Report and Recommendation, as supplemented below, is adopted as the opinion of the Court; and Crews' Motion to Vacate, Set Aside, or Correct his Sentence, filed pursuant to 28 U.S.C. § 2255, dkt. no. 1, is DENIED.
Crews currently is incarcerated in the United States Penitentiary in Lompoc, California. Crews was convicted in this Court, after he pled guilty, to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (1). Crews was sentenced to 15 years' imprisonment pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). United States v. Crews, 5:10-CR-27, Dkt. Nos. 41, 42 (S.D. Ga. Feb. 8, 2012). Crews filed a direct appeal, and the Eleventh Circuit Court of Appeals affirmed Crews' conviction and sentence. United States v. Crews, 495 F.Appx. 36 (11th Cir. 2012).
Crews commenced this action on January 30, 2014, by filing a "Motion to Vacate, Set Aside, or Correct Sentence" pursuant to 28 U.S.C. § 2255. In his motion, Crews contended that his prior burglary convictions under Georgia and Florida law do not qualify for predicate offenses under the ACCA. Crews also contended that his counsel was ineffective for failing to raise these issues on appeal and for not objecting to the use of Crews' Florida burglary convictions before this Court. Dkt. No. 1.
Respondent asserted that Crews' claims are without merit and that he was sentenced appropriately as an armed career criminal. Respondent also argued that Crews' Motion improperly recharacterized the claims he raised on direct appeal by labeling his claims as ineffective assistance of counsel. Dkt. No. 5.
Magistrate Judge Graham determined that Crews failed to satisfy the Strickland standard for ineffective assistance of counsel. Specifically, the Magistrate Judge determined that Crews was not prejudiced at the trial or appellate level by any failure of his counsel to challenge the use of Crews' prior burglary offenses as predicate offenses under the ACCA. Dkt. No. 6, p. 7. In so doing, the Magistrate Judge concluded that, pursuant to the analysis found in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (June 20, 2013), Crews' burglary convictions under Georgia and Florida laws qualified as violent felonies under the ACCA. Id. at pp. 4-7.
Crews filed a Traverse to Respondent's Response after the issuance of the Magistrate Judge's Report. In his Traverse and in his Objections, Crews asserts that his convictions under Georgia law for burglary under O.C.G.A. § 16-7-1(c) do not qualify as predicate offenses for purposes of the ACCA based on the Eleventh Circuit Court of Appeals' decision in United States v. Howard, 742 F.3d 1334 (11th Cir. 2014). In light of Crews' assertions, Respondent was directed to address the applicability of Howard to the facts of this case. Dkt. No. 12. Crews was then allowed an opportunity, after Respondent filed its supplemental response, to file any desired reply. Id . The parties have filed their respective response and reply, and the Court now addresses the parties' contentions.
Crews' Petition presents an issue more complicated than would appear at first blush: whether each of his state law convictions for burglary constitute a burglary in relation to the federal Armed Career Criminal Act. As Crews points out throughout his pleadings, this inquiry is informed by recent decisions of the United States Supreme Court and the Eleventh Circuit. However, these precedents only support the finding that Crews' state law convictions were properly treated as violent felonies warranting the sentencing enhancement he received.
A. Predicate Offenses under the ACCA
The Magistrate Judge's Report and Recommendation contains an accurate description of the applicable law. However, given the somewhat convoluted nature of the issues at hand, the Court reiterates the applicable authorities. The Court begins, as it must, with the plain language of the statute. The ACCA provides, in relevant part:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g) (1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the ...