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Crews v. United States

United States District Court, S.D. Georgia, Waycross Division

May 11, 2018




         After an independent and de novo review of the entire record, the undersigned concurs with the Magistrate Judge's February 1, 2018, Report and Recommendation, dkt. no. 115, to which Movant Mark Eldon Crews ("Crews") filed Objections, dkt. no. 121.[1] The Court OVERRULES Crews' Objections and ADOPTS the Magistrate Judge's Report and Recommendation, as supplemented herein, as the opinion of the Court. Crews' claims do not satisfy the requirements of 28 U.S.C. § 2255(h). Therefore, the Court DISMISSES Crews' second 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct his Sentence, dkt. no. 106, for lack of jurisdiction. Alternatively, the Court DENIES Crews' second Section 2255 Motion on the merits. The Court DIRECTS the Clerk of Court to CLOSE this case and to enter the appropriate judgment of dismissal. The Court DENIES Crews in forma pauperis status on appeal and DENIES him a Certificate of Appealability.


         The Magistrate Judge thoroughly described the procedural and factual background of this matter, including Crews' conviction and sentencing, his direct appeal, his prior Section 2255 motion, his Section 2255(h) application, and his instant Section 2255 Motion. Dkt. No. 115, pp. 8-20. Ultimately, the Magistrate Judge determined that the Court did not rely upon the residual clause of the Armed Career Criminal Act ("ACCA") during Crews' sentencing and, therefore, found that Crews' sentence remains lawful following the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (June 26, 2015). Ia\ at pp. 23-35.

         Having reviewed the entire record in this case, the Court finds that the Magistrate Judge accurately described the history of this case and correctly analyzed Crews' claims. Therefore, the Court need not restate the background of this case or repeat the Magistrate Judge's discussion. However, the Court will address each of Crews' Objections.


         I. Crews' First Objection

         Crews first objects that, in the April 15, 2014, Report and Recommendation regarding his first Section 2255 motion, Magistrate Judge James E. Graham stated that, '' 'Crews received a sentence of 15 years' imprisonment pursuant to the ACCA based on his two (2) prior convictions for burglary under Georgia law and a prior conviction for burglary under Florida law.'" Dkt. No. 121, p. 2 (quoting Dkt. No. 65, pp. 3-4). Therefore, Crews contends that there are only three potential predicate convictions for his ACCA sentence. Id. He also argues that his conviction for burglary under Florida law cannot qualify as an ACCA predicate offense under the Eleventh Circuit Court of Appeals' decision in United States v. Esprit, 841 F.3d 1235 (11th Cir. 2016). This Objection is unavailing for several reasons.

         As Magistrate Judge R. Stan Baker laid out at length in the February 1, 2018, Report and Recommendation, the Court actually considered ten predicate convictions (seven convictions for burglary and three convictions for attempted burglary) at Crews' sentencing. Dkt. No. 115, pp. 8-13, 28-29. Only one of those convictions occurred in Florida. Id. at p. 8; see also Dkt. No. 1; Presentence Investigation Report ("PSI"), ¶¶ 27-30. The record of Crews' convictions and sentencing in this Court makes abundantly clear that the Court considered all ten of his prior burglary convictions as qualifying predicate offenses for ACCA purposes. For example, the Indictment listed all of Crews' prior convictions, including his nine Georgia convictions for burglary or attempted burglary and his one Florida conviction for burglary. Dkt. No. 1. The Probation Officer detailed all of Crews' convictions in the PSI and explained that Crews "has been convicted of seven separate burglary offenses and three separate attempted burglary offenses." PSI, ¶¶ 20, 27-30. In response to Crews' objections to the PSI, the Probation Officer explained how each of Crews' six prior Georgia burglary convictions qualified as an ACCA predicate. Addendum to PSI, p. 5.

         At Crews' sentencing hearing, the Court concurred with and adopted the findings contained in the PSI and its Addendum. Dkt. No. 49, p. 28. When discussing Crews' ACCA status, the Court stated, "There are ten to choose from when we are talking about burglary in Mr. Crews' case. There are seven actual burglary convictions and three attempted burglary convictions." Id. at p. 23. The Court then confirmed, via colloquy with the Probation Officer, that each of those ten convictions met the definition of "burglary" under the ACCA. Id. at pp. 23-25. Even Crews himself acknowledged his extensive list of Georgia burglaries when addressing the Court during his sentencing hearing. Id. at pp. 29-30 ("[I]n my PSI where it states I did the four burglaries on the storages and cut the holes in them and three attempts, I did that within a two-month period of time, and I went and done [sic] my time, and I come [sic] home.").

         In light of this unequivocal record, Crews cannot credibly argue that the Court based his ACCA designation on only his one Florida burglary conviction and two of his Georgia burglary convictions. Crews is correct that Magistrate Judge Graham only analyzed two of Crews' prior Georgia burglary convictions in the Report and Recommendation on Crews' first Section 2255 motion. Dkt. No.. 65. However, Judge Graham in no way concluded that Crews' other burglary and attempted burglary convictions did not qualify as ACCA predicates. Rather, having found three convictions that qualified as ACCA predicates at that time, Magistrate Judge Graham did not need to conduct any analysis of Crews' other convictions to recommend that the Court deny Crews' first Section 2255 motion. Moreover, in response to Crews' first Section 2255 motion, the Government never limited Crews' ACCA predicates to two Georgia burglary convictions and one Florida conviction. Rather, the Government maintained that all of Crews' burglary convictions supported his ACCA designation. Dkt. No. 64, p. 2 ("Crews qualified under [18 U.S.C.] § 924(e) as an armed career criminal due to his ten prior convictions for burglarizing or attempting to burglarize various businesses."). Put simply, regardless of whether Crews' Florida conviction qualifies as an ACCA predicate offense, he has more than enough Georgia burglary convictions to support his armed career criminal designation.

         Moreover, even if Crews' predicate convictions were limited to two Georgia convictions and one Florida conviction, he has not raised a valid Johnson claim as to those convictions. As Magistrate Judge Baker explained in the February 1, 2018, Report and Recommendation, under 28 U.S.C. § 2255(h), this Court only has jurisdiction to hear Crews' second Section 2255 Motion if he raises "newly discovery evidence" or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." Dkt. No. 115, pp. 21, 23-24.

         Before the Eleventh Circuit and this Court, Crews has contended that he can satisfy Section 2255(h), because he raises a claim based on Johnson. Johnson's invalidation of the ACCA's residual clause indeed announced a new rule of constitutional law made retroactive to cases on collateral review. However, in his first Objection, Crews does not rely upon Johnson to challenge the use of his Florida conviction as an ACCA predicate. Rather, he cites Esprit.

         In Esprit, the Eleventh Circuit held that a conviction under Florida's burglary statute could not constitute "burglary" under the ACCA's enumerated crimes provision. 841 F.3d 1238-41. In reaching this conclusion, the Eleventh Circuit did not rely upon Johnson's invalidation of the residual clause. Rather, the Court based its decisions on Mathis v. United States, ___ U.S., 136 S.Ct. 2243 (June 23, 2016), and Descamps v. United States, 570 U.S. 254, 257 (2013). Id. Unlike Johnson, Mathis and Descamps did not announce a new rule of constitutional law made retroactive to cases on collateral review. See In re Hires, 825 F.3d 1297, 1303 (11th Cir. 2016) ("Descamps does not qualify as a new rule of constitutional law for § 2255(h)(2) purposes, and, thus, Descamps cannot serve as a basis, independent or otherwise, for authorizing a second or successive § 2255 motion.") (citing In re Thomas, 823 F.3d 1345, 1349 (11th Cir. May 25, 2016)); In re Hernandez, 857 F.3d 1162, 1164 (11th Cir. 2017) (In Mathis, the Supreme Court merely "provided guidance to courts in interpreting an existing criminal statute" and did not announce a new rule of constitutional law.). Thus, the cases underpinning Crews' first Objection do not satisfy the jurisdictional threshold of Section 2255(h).

         Consequently, even if Crews' Florida conviction was necessary for his ACCA designation (which again, it is not, given his numerous convictions under Georgia law), he could not pursue his Esprit arguments through this second Section 2255 Motion. The Eleventh Circuit recently addressed such a scenario in Perez v. United States, No. 16-17751, 2018 WL 1750555, at *1 (11th Cir. Apr. 12, 2018). There, the defendant's ACCA status rested on his ten prior convictions for burglary under Florida law. Much like Crews, the defendant sought-and was granted- permission from the Eleventh Circuit to file a second Section 2255 challenge based on Johnson. Perez, 2018 WL 1750555, at *1. However, the district court found that the defendant could not proceed under Section 2255(h), because he had failed to establish that the sentencing court relied upon the ACCA's residual clause. Id. at *2. The district court further concluded that it was of no moment that the defendant's Florida burglary convictions no longer qualified as violent felonies, in light of Descamps and Mathis, because "those cases could not be the basis for a second or successive § 2255 motion, and the Johnson inquiry was limited to determining the original basis for the ACCA enhancement." Id.

         The defendant appealed, and the Eleventh Circuit affirmed the district court's decision. Id. at *3-6. The Eleventh Circuit "recognize[d] that Perez's sentence is unconstitutional" in light of Esprit's holding that prior convictions under Florida's burglary statute are not violent felonies under the ACCA. Id. at *5. Nonetheless, the defendant could not obtain relief from that sentence through his second Section 2255 motion. Id. The Court explained that the Supreme Court's decisions in Descamps and Mathis, "as well as ours applying them, including . . . Esprit . . . and Mays[ v. United States, 817 F.3d 728, 733 (11th Cir. 2016)], are not relevant to the key inquiry for Johnson claims: whether, as a matter of historical fact, the movant Vas sentenced as an armed career criminal under the residual clause."' Id. (quoting Beeman v. United States, 871 F.3d 1215, 1224 n.5, 1225 (11th Cir. 2017)). As the Eleventh Circuit explained, "That is a ...

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