United States District Court, S.D. Georgia, Waycross Division
LISA GODBEY WOOD, UNITED STATES DISTRICT COURT.
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. 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.
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.
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.
Crews' First Objection
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.
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.
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.").
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.
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,
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, 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).
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.
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 ...