United States v. Crews ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Crim. Action No. 11-372-1 (EGS)
DONNELL CREWS,
Defendant.
MEMORANDUM OPINION
I. Introduction
Defendant Donnell Crews (“Mr. Crews” or “Defendant”) was
convicted by a jury of attempted interference with commerce by
robbery. See Judgment, ECF No. 266 at 1. 1 He was sentenced to 225
months of imprisonment. Id. at 2. Mr. Crews subsequently filed a
motion for a new trial or for a correction in his sentence
pursuant to 28 U.S.C. § 2255. See generally Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (“Def.’s § 2255 Mot.” or “§ 2255
Motion”), ECF No. 301.
In his § 2255 Motion, Mr. Crews made two arguments in favor
of setting aside his conviction or granting a new trial. First,
he argued ineffective assistance of counsel in violation of his
1 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
1
Sixth Amendment rights. See Def.’s § 2255 Mot., ECF No. 301 at
5-9; Def.’s Suppl. Mot. to Correct Sentence (“Def.’s Suppl. §
2255 Mot.”), ECF No. 304 at 3; Def.’s Suppl. to Mot. for New
Trial (“Def.’s Add’l Suppl. § 2255 Mot.”), ECF No. 331 at 11,
19. Second, he argued that his sentence should be reconsidered
based upon the Supreme Court’s rulings in Johnson v. United
States, 576 U.S. 591, 135 S. Ct. 2551 (2015), and United States
v. Davis, 139 S. Ct. 2319 (2019). See Def.’s Add’l Suppl. § 2255
Mot., ECF No. 331 at 26. The Court denied Mr. Crews’ § 2255
Motion, along with the two supplemental § 2255 filings. See Mem.
Op., ECF No. 360 at 2.
Mr. Crews now moves for a certificate of appealability so
that he can appeal the Court’s decision. See Def.’s Mot. for
Certificate of Appealability (“Def.’s COA Mot.”), ECF No. 366.
Upon consideration of the motion, the response, the applicable
law and regulations, and the entire record and the materials
cited therein, for the reasons explained below, the Court DENIES
Mr. Crews’ motion for a certificate of appealability.
II. Factual and Procedural Background
The Court’s previous Memorandum Opinion set forth the facts
of this case in detail. See United States v. Crews, No. 11-372-1
(EGS), 2021 WL 5798033, at *1-4 (D.D.C. Dec. 7, 2021). What
follows is a summary of the facts and procedural history
necessary to provide context for Mr. Crews’ current motion.
2
A. Attempted Hobbs Act Robbery
On September 21, 2011, three men attempted to rob Hugh
Whitaker, an employee of a cash-in-transit company, while he
exited a CVS with approximately $10,000 in cash. United States
v. Crews, 856 F.3d 91, 92-93 (D.C. Cir. 2017). One of the men
drew a handgun and demanded the cash Mr. Whitaker was carrying.
Id. at 92. In response, Mr. Whitaker drew his own handgun and
the two men exchanged gunfire. Id. Mr. Whitaker retreated into
the CVS uninjured, and the three men — later identified as Mr.
Crews, Kirk Dean, and Anthony James — fled the scene. Id.The police stopped Mr. Crews and Mr. James a few blocks
away, and a witness identified them as being two of the men who
had confronted Mr. Whitaker. Id. at 92-94. Meanwhile, a fourth
individual, Antwon Crowder, who had driven the other three men
to the CVS, drove the injured Mr. Dean to a hospital. Id. at 93-
94. Mr. Dean had sustained two gunshot wounds during the CVS
gunfire exchange, but he died from a separate gunshot wound,
unrelated to the attempted robbery, that he sustained in transit
from the CVS to the hospital. Id. at 94.
On December 20, 2011, a grand jury charged Mr. Crews with
four counts by indictment: (1) Conspiracy to interfere with
commerce by robbery in violation of 18 U.S.C. § 1951 (also known
as the Hobbs Act); (2) Attempted interference with commerce by
robbery and aiding and abetting in violation of 18 U.S.C. §§ 23
and 1951; (3) Using, carrying, or possessing a firearm during a
crime of violence in violation of 18 U.S.C. § 924(c); and (4)
Unlawful possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g). Indictment, ECF No. 12.
B. Trials and Sentencing
Mr. Crews and Mr. Crowder were tried jointly, and the first
trial concluded with a hung jury; on August 14, 2013, the Court
declared a mistrial. Crews, 856 F.3d at 93-94. Following a
rescheduling, the defendants’ retrial began on February 10,
2014. See Minute Entry (Jan. 10, 2014). On March 12, 2014, the
jury found Mr. Crews guilty of attempted interference with
commerce by robbery. Verdict Form (Crews), ECF No. 221 at 1.
After Mr. Crowder decided to enter a guilty plea, the government
informed the Court that it planned to dismiss the remaining
counts against Mr. Crews and requested a sentencing date. See
Gov’t’s Mot. to Order Presentence Investigation Report and
Schedule Sentencing Date, ECF No. 234 at 1.
The U.S. Probation Office determined that Mr. Crews was a
career offender under § 4B1.1 of the Sentencing Guidelines,
based on his conviction in this case, a 2003 robbery conviction
in Maryland, and a 2005 carjacking conviction in Maryland.
Presentence Investigation Report (“PSI Report”), ECF No. 252 at
6-11. Accordingly, the Probation Office calculated Mr. Crews’
total offense level as 32, his criminal history category as VI,
4
and his guidelines range as 210 to 240 months. Sentencing
Recommendation (Crews), ECF No. 253 at 1. At sentencing, on
December 16, 2014, Mr. Crews’ counsel asserted that “either one
or both of the prior convictions are not qualifying offenses
such that [Mr. Crews] would now be a career offend[er].” Tr. of
Sentencing Proceedings, ECF No. 315 at 7. The Court did not
determine whether Mr. Crews was a career offender under the
guidelines and sentenced him to 225 months of imprisonment,
within the career-offender guideline range, followed by a three-
year term of supervised release. Judgment, ECF No. 266 at 1.
C. Appeal to Court of Appeals for the District of
Columbia Circuit
Mr. Crews, represented by new counsel, challenged two of
the Court’s evidentiary rulings on appeal. Crews, 856 F.3d at
93. First, Mr. Crews alleged that the Court erred by denying his
motion for a mistrial based on graphic testimony by an emergency
room nurse about Mr. Dean’s head wound, which was unrelated to
the robbery. Id. at 93-94, 96. Second, Mr. Crews claimed that
the Court improperly struck the testimony of his fiancée,
Vakeema Ensley, his only defense witness, after she asserted her
Fifth Amendment privilege during the government’s cross-
examination. Id. at 93. The Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”) rejected both claims and
affirmed Mr. Crews’ conviction on May 9, 2017. Id. at 101.
5
While Mr. Crews’ appeal to the D.C. Circuit was pending,
the Supreme Court in Johnson invalidated the “residual clause”
of the Armed Career Criminal Act (the “ACCA”) as
unconstitutionally vague. See Johnson, 576 U.S. at 606. At the
time of Mr. Crews’ sentencing in 2014, Section 4B1.2 of the
federal Sentencing Guidelines — defining a “crime of violence”
for purposes of determining whether a defendant is a career
offender under § 4B1.1 — included a residual clause identical to
the one invalidated in Johnson. See U.S.S.G. Suppl. App. C,
amend. 798 (effective Aug. 1, 2016). The Sentencing Commission
subsequently removed this clause from § 4B1.2’s crime-of-
violence definition in 2016. See id. However, in Beckles v.
United States, 137 S. Ct. 886 (2017), the Supreme Court held
that the Sentencing Guidelines, by virtue of being advisory
rather than mandatory, are not subject to constitutional
vagueness challenges and that “[t]he residual clause in §
4B1.2(a)(2) therefore is not void for vagueness[,]” id. at 892.
D. § 2255 Motion for New Trial
On May 6, 2018, Mr. Crews, pro se, filed a motion under 28
U.S.C. § 2255, asserting five grounds for relief. See Def.’s §
2255 Mot., ECF No. 301 at 5. First, Mr. Crews contended that his
trial counsel was ineffective for failing to challenge his
career offender classification in the PSI Report. Id. at 5.
Second, he argued that his trial counsel was ineffective for
6
purportedly waiving his speedy trial rights without his consent
during the re-trial proceedings. Id. at 6. Third, he asserted
that his trial and appellate counsel were both ineffective for
failing to challenge the sufficiency of evidence on his charge
for using, carrying, or possessing a firearm during a crime of
violence, a charge for which he was not convicted. Id. at 7-8;
see also Verdict, ECF No. 221 at 1. Fourth, Mr. Crews contended
that his attempted Hobbs Act robbery conviction is not a crime
of violence following the decision of the Court of Appeals for
the Tenth Circuit (“Tenth Circuit”) in United States v.
O’Connor, 874 F.3d 1147 (10th Cir. 2017), and the Supreme
Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). 2
2 In denying Mr. Crews’ § 2255 Motion, the Court construed Mr.
Crews’ claim regarding O’Connor and Dimaya not as challenging
the elements of his conviction but rather as asserting that his
conviction in this case is “not a crime of violence after these
rulings.” Def.’s § 2255 Mot., ECF No. 301 at 8. Since the
underlying logic of these cases is distinct from each other, the
Court considered them separately. Compare O’Connor, 874 F. 3d at
1158 (holding that Hobbs Act robbery did not qualify as a crime
of violence under the 2016 Sentencing Guidelines), with Dimaya,
138 S. Ct. at 1210 (invalidating the residual clause in the
Immigration and Nationality Act (the “INA”), 18 U.S.C. § 16(b)).
The Court considered whether Hobbs Act robbery is a crime of
violence within its analysis of whether Mr. Crews’ counsel was
ineffective for not challenging his career offender
classification. See Mem. Op., ECF No. 360 at 38–52. The Court
considered Mr. Crews’ claim regarding Dimaya alongside his
argument that his sentence should be reconsidered following
Johnson v. United States, 576 U.S. 591, 606, 135 S. Ct. 2551(2015), (invalidating the residual clause in the ACCA), and
United States v. Davis, 139 S. Ct. 2319, 2551 (2019)
(invalidating the residual clause in 18 U.S.C. § 924(c)(3)(B)).
See Mem. Op., ECF No. 360 at 67–69.
7
Id. at 9. Finally, he disputed the government’s ostensible
broadening of his indictment during trial, and his counsel’s
failure to object to the prosecution’s aiding-and-abetting
theory. Id. at 11.
On July 25, 2018, Mr. Crews filed a supplement to his §
2255 Motion, recognizing that his vagueness challenge to the
career offender guidelines (his fourth ground in his original §
2255 Motion) “must fail” following the Supreme Court’s decision
in Beckles. See Def.’s Suppl. § 2255 Mot., ECF No. 304 at 1.
Instead, Mr. Crews asserted a new claim of ineffective
assistance of appellate counsel for failing to challenge his
career offender designation on appeal. 3 See id. at 4.
On December 15, 2018, Mr. Crews filed a Motion to Appoint
Counsel, ECF No. 318, which the Court granted. Minute Order
(Jan. 2, 2019). On July 28, 2019, Mr. Crews’ counsel filed a
supplemental brief in further support of his § 2255 claims. See
generally Def.’s Add’l Suppl. § 2255 Mot., ECF No. 331. Mr.
Crews’ second supplement included two new ineffective assistance
3 In its Memorandum Opinion denying Mr. Crews’ § 2255 Motion, the
Court treated this claim as replacing Mr. Crews’ first ground in
his earlier claim that his trial counsel was ineffective for
failing to challenge his career offender classification in the
PSI Report. The record establishes that trial counsel preserved
an objection to the career offender classification for appeal,
arguing “that either one or both of the prior convictions are
not qualifying offenses such that he would now be a career
offend[er].” Tr. of Sentencing Proceedings, ECF No. 315 at 7.
8
of trial counsel claims: (1) that trial counsel was ineffective
for failing to request that the Court narrow its ruling striking
the entire testimony of Ms. Ensley; and (2) that trial counsel
was ineffective for not retaining experts in the fields of DNA
testing and DNA interpretation. Id. at 11, 19. Mr. Crews also
asked the Court to reconsider his sentence based upon the
Supreme Court’s decisions in Johnson v. United States, 576 U.S.
591, 135 S. Ct. 2551 (2015), and United States v. Davis, 139 S.
Ct. 2319 (2019). Id. at 26.
The Court denied Mr. Crews’ § 2255 Motion and its
accompanying two supplements on December 7, 2021. See Mem. Op.,
ECF No. 360 at 71. The Court found that Mr. Crews did not
receive ineffective assistance of trial or appellate counsel for
any of his timely claims, id. at 36-38; and it determined that
the two additional ineffective trial counsel claims raised in
the second supplemental brief were untimely because they did not
relate back to Mr. Crews’ timely filed § 2255 Motion, id. at 29-
34. The Court further found that equitable tolling was not
warranted, as any hardships Mr. Crews had referenced did not
rise to “extraordinary circumstances” preventing timely filing.
Id. at 34-36. Finally, the Court held that the Supreme Court’s
decisions in Johnson, Dimaya, and Davis did not impact Mr.
Crews’ sentence, as they did not involve residual clauses in
federal statutes applicable to his conviction. Id. at 68-69.
9
Subsequent to the Court’s issuance of its Order and
accompanying Memorandum Opinion, see ECF No. 359-60; Mr. Crews
timely filed a notice of appeal to the D.C. Circuit, see ECF No.
361; and the D.C. Circuit referred to this Court the
determination of whether a certificate of appealability is
warranted, see ECF No. 363. On April 24, 2022, Mr. Crews filed
the present motion for a certificate of appealability. See
generally Def.’s COA Mot., ECF No. 366. On July 5, 2022, the
government filed its opposition. See generally United States’
Opp’n to Def.’s Mot. for Certificate of Appealability (“Gov’t’s
COA Opp’n Mot.”), ECF No. 369. Mr. Crews has not filed a reply,
but his motion is ripe and ready for adjudication.
III. Legal Standard
A certificate of appealability must be issued for an
appellate court to hear an appeal from a “final order in a
proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). The
federal district court judge who rendered the judgment for which
appellate review is sought must either issue the certificate of
appealability or explain why it should not be issued. Fed. R.
App. P. 22(b)(1). Where a court denies a habeas claim on
procedural grounds, a certificate of appealability “should issue
when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason
10
would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). As for whether an application states a valid claim of
the denial of a constitutional right, a certificate of
appealability may issue “only if the petitioner has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To make this showing, the petitioner “need
not show that he should prevail on the merits. . . . Rather, he
must demonstrate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve
encouragement to proceed further.” United States v. Mitchell,
216 F.3d 1126, 1130 (D.C. Cir. 2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)).
If the court issues the certificate of appealability, it
must specify which issues satisfy the substantial showing
requirement. Mitchell, 216 F.3d at 1130. If a district court
judge denies a request for a certificate of appealability, a
petitioner may request one from the circuit court judge. Fed. R.
App. P. 22(b)(1).
IV. Analysis
Mr. Crews seeks to appeal the Court’s denial of four of the
claims brought in his § 2255 Motion and accompanying
supplements: (1) his ineffective assistance of counsel claim
11
that his trial attorney failed to request that the Court narrow
its ruling striking the full testimony of Ms. Ensley; (2) his
ineffective assistance of counsel claim that his trial attorney
failed to retain experts in the fields of DNA testing and
interpretation in his defense; (3) his ineffective assistance of
counsel claim that his appellate attorney failed to challenge
his career offender designation on appeal with the argument that
attempted Hobbs Act robbery did not qualify as a “crime of
violence” under § 4B1.2 of the Sentencing Guidelines at the time
of his sentencing; and (4) his argument that the Court should
reconsider his sentence pursuant to the Supreme Court’s
decisions in Johnson, Dimaya, and Davis. See Def.’s COA Mot.,
ECF No. 366 at 6-28.
Since the Court denied the first two § 2255 claims on
procedural grounds, it first discusses its procedural rulings on
these two claims in relation to the present motion, before
addressing its substantive rulings pertaining to the merits of
Mr. Crews’ latter two claims.
A. Reasonable Jurists Would Not Debate that Mr. Crews’
Ineffective Assistance of Trial Counsel Claims Raised
in His Second Supplement Are Procedurally Time-Barred
Mr. Crews argues that reasonable jurists could debate
whether the two ineffective assistance of trial counsel claims
raised in his second § 2255 supplement — pertaining to the
Court’s striking of Ms. Ensley’s testimony and the lack of DNA
12
experts retained in Mr. Crews’ defense — should be considered
timely, or alternatively, deemed eligible for equitable tolling.
See Def.’s COA Mot., ECF No. 366 at 6-17. First, Mr. Crews
argues, as he did in his second § 2255 supplement, that he
timely alleged that his trial counsel was ineffective in raising
the issue of Ms. Ensley’s testimony, albeit “in the incorrect
portion of the [original] form pro se motion.” Def.’s COA Mot.,
ECF No. 366 at 6; see also Def.’s § 2255 Mot., ECF No. 301 at 2.
He contends, as he did before, that “[a] liberal construction of
[his] pro se Motion to Vacate should be construed in favor of
allowing [his] claim[,]” given courts’ tendency to apply less
stringent standards to pro se pleadings. See Def.’s COA Mot.,
ECF No. 366 at 9 (citing Webb v. United States Veterans
Initiative, 993 F.3d 970, 972 (D.C. Cir. 2021)).
A defendant generally must file a motion for relief under §
2255 within a year of “the date on which the facts supporting
the claim or claims presented could have been discovered through
the exercise of due diligence.” 28 U.S.C. § 2255(f)(4). As the
Court discussed in its Memorandum Opinion, Mr. Crews’ judgment
became final on August 7, 2017, and his deadline to file for §
2255 relief expired one year later, on August 7, 2018. Mem. Op.,
ECF No. 360 at 30. While Mr. Crews’ original pro se motion and
his first supplemental motion were timely filed on May 1, 2018
and July 25, 2018, respectively, Mr. Crews’ second supplement,
13
submitted almost a year after his filing deadline on July 28,
2019 and raising the claim related to Ms. Ensley’s testimony,
was not timely. Id. at 30-31. This determination is not a
debatable ruling.
Additionally, reasonable jurists would not debate whether
Mr. Crews’ improper placement of the Ms. Ensley issue in his pro
se motion warrants liberally construing the claim as timely
filed. In this motion, Mr. Crews again points to part 9(f) of
his pro se § 2255 filing, summarizing the “Grounds Raised” on
his appeal to the D.C. Circuit, as the timely source for his
second supplemental claim regarding Ms. Ensley’s testimony, see
Def.’s COA Mot, ECF No. 366 at 9; even though this claim is not
also reiterated in the section for the five enumerated grounds
for his § 2255 Motion, see Def.’s § 2255 Mot., ECF No. 301 at 2,
4-10. Even acknowledging Mr. Crews’ continued argument that pro
se filings are “to be liberally construed,” Def.’s COA Mot., ECF
No. 366 at 8; the Court is unpersuaded that conflating the
grounds for direct appeal and the grounds for collateral attack
in the § 2255 motion form is sufficient in a reasonable jurist’s
mind to permit such liberal construction in favor of a
timeliness finding, see Mem. Op., ECF No. 360 at 33 (reaching
the same conclusion, since “Mr. Crews [did] not mention Ms.
Ensley’s testimony anywhere under the five grounds for his §
2255 motion”).
14
In the alternative, Mr. Crews argues that even if the Court
continues to deem this supplemental claim untimely, reasonable
jurists could differ as to whether “the misplacement of the
issue related to Ms. Ensley’s testimony” is sufficient to
entitle him to equitable tolling that would excuse the late
filing. Def.’s COA Mot., ECF No. 366 at 12.
The doctrine of equitable tolling applies to the filing of
§ 2255 motions. United States v. McDade, 699 F.3d 499, 504 (D.C.
Cir. 2012) (citing Holland v. Florida, 560 U.S. 631 (2010)). A
petitioner is “entitled to equitable tolling only if he shows:
(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and
prevented timely filing.” Id. (citation and internal quotation
marks omitted). “The diligence required for equitable tolling
purposes is ‘reasonable diligence.’” Holland, 560 U.S. at 653.
The district court’s task is to consider the facts of the case
“to determine whether they indeed constitute extraordinary
circumstances sufficient to warrant equitable relief.” Id. at
653-54. Equitable tolling for habeas petitioners is decided “on
a case-by-case basis,” id. at 650; and “is to be employed only
sparingly” and where “extraordinary circumstances beyond a
prisoner’s control make it impossible to file a petition on
time,” United States v. Cicero, 214 F.3d 199, 203 (D.C. Cir.
2000) (citations and internal quotation marks omitted). “To
15
count as sufficiently ‘extraordinary,’ . . . ‘the circumstances
that caused a litigant’s delay must have been beyond [his]
control’; in other words, the delay ‘cannot be a product of that
litigant’s own misunderstanding of the law or tactical mistakes
in litigation.’” Head v. Wilson, 792 F.3d 102, 107 (D.C. Cir.
2015) (quoting Menominee Indian Tribe of Wis. v. United States,
764 F.3d 51, 58 (D.C. Cir. 2014)).
Yet, contrary to the standard that the delay “cannot be a
product of [a] litigant’s own misunderstanding of the law,” id.;
this is the very argument Mr. Crews makes, asserting he should
be entitled to equitable tolling even though his ineffective
assistance claim regarding Ms. Ensley’s testimony “was entered
by [him] in the wrong box in the form” and was “a clerical error
in the placement of the issue[,]” Def.’s COA Mot., ECF No. 366
at 9, 12. While the Court acknowledged that Mr. Crews has shown
some diligence in pursuing his rights, see Mem. Op., ECF No. 360
at 35; he raises no new “extraordinary circumstances” that made
it impossible for him to supplement his § 2255 Motion on time,
and jurists of reason have rejected the idea that “pro se
representation alone or procedural ignorance” can rise to “rare
and exceptional” circumstances meriting equitable tolling, see
Johnson v. United States, 544 U.S. 295, 311, 125 S. Ct. 1571(2005); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000);
Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006).
16
Mr. Crews next argues that the ineffective assistance of
counsel claim in his second supplement about his trial
attorney’s failure to retain a DNA expert relates back to his
originally filed § 2255 Motion and should be deemed timely. See
Def.’s COA Mot., ECF No. 366 at 12-17. He contends that since he
raised ineffective assistance of counsel claims “in general
terms in the pro se motion,” the “specific added instance of
ineffectiveness” pertaining to his trial counsel’s “failure to
retain a DNA expert to challenge the government’s expert” arises
from “precisely the same common core of operative facts” and
thus relates back to his original § 2255 filing. Id. at 16-17.
The government responds that “[r]easonable jurists would not
debate the correctness of [the] Court’s ruling that raising one
allegation of ineffective assistance of counsel does not suffice
to preserve all others.” Gov’t’s COA Opp’n Mot., ECF No. 369 at
13. The Court agrees and reiterates its prior determination that
this supplemental ineffective assistance of trial counsel claim
does not debatably relate back to those claims raised in Mr.
Crews’ timely filings. See Mem. Op., ECF No. 360 at 33-34.
Claims filed beyond § 2255’s one-year limitation period are
timely if they relate back to the timely claims, meaning that
they “arise from the same core facts as the timely filed claims,
and not [if] the new claims depend upon events separate in ‘both
time and type’ from the originally raised episodes.” Mayle v.
17
Felix, 545 U.S. 644, 645, 125 S. Ct. 2562 (2005). The Federal
Rules of Civil Procedure establish that “[a]n amendment to a
pleading relates back to the date of the original pleading when”
the claim asserted in the amended pleading “arose out of the
conduct, transaction, or occurrence set out — or attempted to be
set out — in the original pleading[.]” Fed. R. Civ. P. 15(c)(1).
Courts have rejected the contention that timely alleging
one ineffective assistance of counsel claim gives the petitioner
unlimited leeway to file untimely amendments raising some other
type of ineffective assistance claim based upon distinct
conduct. See, e.g., Schneider v. McDaniel, 674 F.3d 1144, 1151-
52 (9th Cir. 2012) (allowing any general ineffective assistance
of counsel claim to support “the relation back of any and every”
such claim “would stand the Supreme Court’s decision in Mayle on
its head”); United States v. Ciampi, 419 F.3d 20, 24 (1st Cir.
2005) (negating the satisfaction of Rule 15’s “relation back”
standard “merely by raising some type of ineffective assistance
in the original petition, and then amending [it] to assert
another ineffective assistance claim based upon an entirely
distinct type of attorney misfeasance”); Davenport v. United
States, 217 F.3d 1341, 1346 (11th Cir. 2000) (same conclusion
regarding untimely ineffective assistance of counsel claims that
“arose from separate conduct and occurrences in both time and
type” from the original claims); United States v. Palmer, 902 F.
18Supp. 2d 1, 15 (D.D.C. 2012) (same conclusion, as allowing
different factual theories “linked only by a common generalized
legal theory to a timely claim would undermine [the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”)]’s goal of finality in convictions”).
Because Mr. Crews’ ineffective assistance claim related to
his trial counsel’s failure to retain a DNA expert in his
defense is based on occurrences “totally separate and distinct,
in both time and type” from those raised in his timely § 2255
filings, reasonable jurists could not debate whether this claim
is timely based on Rule 15’s relation back test. United States
v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002) (internal quotation
marks omitted). 4
Since the Court finds that reasonable jurists could not
debate whether the Court was correct in its procedural rulings
as to the two claims in Mr. Crews’ second supplemental briefing,
4 The parties proffer differing views of McClain v. LeGrand, No.
3:14-cv-00269, 2019 WL 1646393 (D. Nev. Apr. 16, 2019). Compare
Def.’s COA Mot., ECF No. 366 at 15-17, with Gov’t’s COA Opp’n
Mot., ECF No. 369 at 12-13. The McClain court determined that an
amended claim related back to an original claim as to the denial
of effective assistance of counsel when both claims were united
by facts pertaining to counsel’s failure to advise the defendant
that he could file a direct appeal and failed to file an appeal
on his behalf. McClain, 2019 WL 1646393, at *3. The factual
circumstances thus stemmed from the same “core of operative
facts.” Id. The Court reads McClain only to support its
conclusion, as there are no facts in Mr. Crews’ timely § 2255
claims that relate to his counsel’s actions (or lack thereof) as
to the use of DNA experts at his trial.
19
it need not reach the issue of whether Mr. Crews’ motion states
a valid claim of the denial of a constitutional right as to
those two claims. Slack, 529 U.S. at 484. Therefore, the Court
DENIES Mr. Crews’ motion for a certificate of appealability on
his ineffective assistance of trial counsel claims in his second
supplement.
B. Reasonable Jurists Would Not Debate that Mr. Crews’
Appellate Counsel Was Not Ineffective for Not
Challenging His Sentencing as a Career Offender
Mr. Crews reiterates the ineffective assistance of counsel
claim made in his first § 2255 supplement related to his
appellate counsel’s failure to challenge his career offender
sentencing designation on appeal. See Def.’s COA Mot., ECF No.
366 at 26; Def.’s Suppl. § 2255 Mot., ECF No. 304 at 4. He
argues that because “newly appointed appellate counsel did not
raise the issue related to the career offender status[,]” which
his “trial counsel raised and preserved an objection to” on the
record, there is a “significant legal claim related to [his]
Sixth Amendment right to effective assistance of appellate
counsel.” Def.’s COA Mot., ECF No. 366 at 22, 26. At the time of
Mr. Crews’ sentencing in 2014, to be a career offender, a
defendant had to have at least two prior felony convictions of
either a crime of violence or a controlled-substance offense.
U.S.S.G. § 4B1.1(a) (2014). A “crime of violence” was defined as
follows:
20
(a) The term “crime of violence” means any
offense under federal or state law, 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, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
Id. § 4B1.2(a). Subsection (a)(1) is referred to as the
“elements” or “force” clause; the non-italicized portion of
subsection (2) is the “enumerated offense” clause; and the
italicized text is the “residual” clause. See United States v.
Carr, 314 F. Supp. 3d 272, 274 n.1 (D.D.C. 2018).
Because Mr. Crews’ ineffective assistance of appellate
counsel claim was timely raised in his first supplement, the
Court addressed the substantive merits of this Sixth Amendment
claim in ruling on his § 2255 Motion, first determining whether
attempted Hobbs Act robbery qualified as a crime of violence at
the time of Mr. Crews’ sentencing under the enumerated offense
and residual clauses of § 4B1.2(a) of the Sentencing Guidelines. 5
See Mem. Op., ECF No. 360 at 40-52. After answering in the
5 Because the government conceded that “Hobbs Act robbery may be
committed by using force against property (and not just force
against a person)” and is “broader than the elements-clause
definition of a crime of violence[,]” the Court did not address
whether attempted Hobbs Act robbery qualified as a crime of
violence under that clause. See Mem. Op., ECF No. 360 at 40.
21
affirmative for both clauses, the Court determined that Mr.
Crews’ ineffective assistance of appellate counsel claim failed
because “each of [his] three convictions meets the requirements
for a ‘crime of violence’ under § 4B1.2(a)[.]” 6 Id. at 40.
Claims of ineffective assistance of counsel are governed by
the standard set forth in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984). To succeed, a defendant must show
both deficient performance by his attorney and prejudice.
Strickland, 466 U.S. at 687. Strickland requires a party
claiming ineffective assistance of trial counsel to show that:
(1) “counsel’s representation fell below an objective standard
of reasonableness . . . [measured] under prevailing professional
norms[,]” (the performance prong); and (2) the “deficiencies in
counsel’s performance . . . [were] prejudicial to the defense”
6 The Court also addressed whether Mr. Crews’ prior convictions —
a 2003 robbery conviction in Maryland and a 2005 carjacking
conviction in Maryland — qualified as crimes of violence under
the 2014 Sentencing Guidelines. See Mem. Op., ECF No. 360 at 52-
64. It determined that the robbery conviction was a crime of
violence under the residual clause of § 4B1.2(a), see id. at 52-
58; and that the carjacking conviction was a crime of violence
under the elements and residual clauses of § 4B1.2(a), see id.
at 58-64. In the present motion, Mr. Crews does not challenge
the Court’s classification of these two convictions as crimes of
violence, instead focusing on his attempted Hobbs Act robbery
conviction. See Def.’s COA Mot., ECF No. 366 at 18-22. The Court
thus only addresses Mr. Crews’ ineffective assistance of
appellate counsel claim in relation to whether it is debatable
that attempted Hobbs Act robbery qualified as a crime of
violence for purposes of Mr. Crews’ career offender designation
at the time of sentencing.
22
(the prejudice prong). Id. at 688, 692. To establish deficient
performance, the moving party must show “specific errors made by
trial counsel.” United States v. Cronic, 466 U.S. 648, 666, 104
S. Ct. 2039 (1984). To establish prejudice, the moving party
must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
“Judicial scrutiny of counsel’s performance must be highly
deferential[,]” and the defendant must overcome “a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689.
The standard for evaluating claims of ineffective
assistance of appellate counsel is the same as that for
evaluating claims of ineffective assistance of trial counsel.
See Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746 (2000);
United States v. Agramonte, 366 F. Supp. 2d 83, 86 (D.D.C.
2005). “[A]ppellate counsel who files a merits brief need not
(and should not) raise every nonfrivolous claim, but rather may
select from among them in order to maximize the likelihood of
success on appeal.” Robbins, 528 U.S. at 288; see also
Agramonte, 366 F. Supp. 2d at 86-87 (“It is settled that a
criminal defendant has no constitutional right to have appellate
counsel raise every nonfrivolous issue that the defendant
requests.”). Although it is “possible to bring a Strickland
23
claim based on counsel’s failure to raise a particular claim” on
appeal, “it is difficult to demonstrate that counsel was
incompetent” on that ground. Robbins, 528 U.S. at 288.
To succeed on his claim of ineffective assistance of
appellate counsel, Mr. Crews must establish “a reasonable
probability” that attempted Hobbs Act robbery did not qualify as
a crime of violence under any of the three available definitions
in § 4B1.2(a) of the 2014 Guidelines: (1) the “elements” or
“force” clause; 7 (2) the “enumerated offense” clause; 8 or (3) the
“residual” clause. 9 See Strickland, 466 U.S. at 694. In assessing
7 Under the elements clause, the Court looks “to the elements of
the crime to determine whether, by its terms, commission of the
crime inherently (i.e., categorically) requires the kind of
force” that is contemplated in § 4B1.2(a). United States v.
Brown, 892 F.3d 385, 402 (D.C. Cir. 2018).
8 The inquiry under the enumerated offense clause compares the
elements of the conviction with the elements of any potentially
applicable § 4B1.2(a)(2) enumerated offenses to see if they
match. See Mathis v. United States, 579 U.S. 500, 505-06, 136 S.
Ct. 2243 (2016). If the Guidelines do not supply a definition of
the enumerated offense, the Court determines the generic
definition by considering “a wide range of sources . . . ,
including federal and state statutes, the Model Penal Code,
dictionaries, and treatises.” United States v. O’Connor, 874
F.3d 1147, 1151 (10th Cir. 2017). If the scope of conduct
covered by the defendant’s crime of conviction is broader than
what the enumerated offense definition would cover, the crime of
violence sentencing enhancement is not valid under the
enumerated offense clause. See United States v. Titties, 852
F.3d 1257, 1265-66 (10th Cir. 2017).
9 The inquiry under the residual clause remains categorical,
considering “whether the elements of the offense are of the type
that would justify its inclusion within the residual provision,
without inquiring into the specific conduct of th[e] particular
offender.” James v. United States, 550 U.S. 192, 202, 127 S. Ct.
1586 (2007).
24
whether an offense is a crime of violence, courts use a
“categorical approach,” focusing on “how the law defines the
offense” and not on how “an individual offender might have
committed it on a particular occasion.” United States v. Haight,
892 F.3d 1271, 1279 (D.C. Cir. 2018) (quoting Begay v. United
States, 553 U.S. 137, 141, 128 S. Ct. 1581 (2008)). If the
statute on which the conviction was based defines the offense in
a way that includes, at its margins, conduct beyond what the
guidelines contemplate as a crime of violence, the offense is
not categorically a crime of violence. See id. In other words,
the question is whether “the least of th[e] acts criminalized .
. . are encompassed by the generic federal offense.” United
States v. Carr, 946 F.3d 598, 601 (D.C. Cir. 2020) (citing
Moncrieffe v. Holder, 569 U.S. 184, 191, 135 S. Ct. 1678 (2013)
(internal quotation marks omitted)).
1. Reasonable Jurists Would Not Debate that
Attempted Hobbs Act Robbery Qualified as a
“Crime of Violence” Under § 4B1.2(a) of the
Sentencing Guidelines at the Time Mr. Crews Was
Sentenced
Mr. Crews contends that “a certificate of appealability
should issue related to the Hobbs Act, residual clause claims,
and career offender claims.” Def.’s COA Mot., ECF No. 366 at 22.
He argues that reasonable jurists could debate whether attempted
Hobbs Act robbery qualifies as a crime of violence because of an
amendment to the Sentencing Guidelines that occurred after his
25
sentencing, which he claims should “be applied retroactively.”
Id. at 20. The government notes that Mr. Crews never specifies
which amendment he is referring to, though is presumably correct
in identifying U.S.S.G. Suppl. App. C, amend. 798 (effective
Aug. 1, 2016) (“Amendment 798” or “U.S.S.G. Amend. 798”) as the
amendment in question. See Gov’t’s COA Opp’n Mot., ECF No. 369
at 14. Mr. Crews contends that a retroactive application of
Amendment 798, supported by the Tenth Circuit’s 2017 decision in
O’Connor 10 and the Supreme Court’s 2016 decision in Welch v.
United States, 578 U.S. 120, 136 S. Ct. 1257 (2016), 11 could lead
“reasonable jurists [to] have differing opinions concerning the
application of the guidelines to a particular group of
offenses[,]” i.e., the Guidelines’ present crime-of-violence
definition applied to Mr. Crews’ attempted Hobbs Act robbery
conviction. Def.’s COA Mot., ECF No. 366 at 21-22.
The government responds that “[j]urists of reason would not
find it debatable whether [Mr. Crews’] argument states a valid
claim of the denial of a constitutional right” because he
10 See supra note 2 (discussing O’Connor’s holding that Hobbs Act
robbery is not a crime of violence under the 2016 Guidelines).
11 In Welch, the Supreme Court held — pursuant to the framework
of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989) “for
determining whether a new rule applies to cases on collateral
review” — that its prior decision in Johnson v. United States to
invalidate the ACCA’s residual clause as unconstitutionally
vague was a substantive decision with retroactive effect. Welch
v. United States, 578 U.S. 120, 128-30, 136 S. Ct. 1257 (2016).
26
“conflates not only” decisions applying the ACCA with those
applying § 4B1.2(a), “but also the enumerated-offense and
residual clauses of § 4B1.2(a)(2).” Gov’t’s COA Opp’n Mot., ECF
No. 369 at 14. The government contends that Welch “has [no]
bearing on whether Amendment 798 applies retroactively[,]” as it
utilized the Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060(1989) framework for assessing the retroactive effect of new
rules of criminal procedure, which is inapplicable to
determining the retroactive effect of amendments to the
Guidelines. See id. at 14-16. The government also argues that
O’Connor does not aid Mr. Crews’ argument for retroactivity, as
the Tenth Circuit did not: (1) apply Amendment 798’s definition
of “extortion” retroactively under the enumerated offense
clause; or (2) consider whether attempted Hobbs Act robbery was
a crime of violence under § 4B1.2(a)(2)’s former residual
clause, which the government argues leads Mr. Crews to “ma[k]e
the requisite showing as to neither [clause].” Id. at 16-18.
a. Reasonable Jurists Would Not Debate that
Amendment 798 to the Sentencing Guidelines,
Enacted After Mr. Crews Was Sentenced, Does
Not Apply to Him Retroactively
Courts generally must use the Sentencing Guidelines in
effect at the time of sentencing. United States v. Green, 952
F.2d 414, 416 (D.C. Cir. 1991); United States v. Smaw, 22 F.3d
330, 333 (D.C. Cir. 1994) (noting the Sentencing Commission’s
directive to courts to “use the Guidelines Manual in effect on
27
the date that the defendant is sentenced” except in “specified
exceptional cases”) (citing U.S.S.G. § 1B1.11(a)). However, the
Supreme Court has determined “that the policy statement in §
1B1.10 of the Sentencing Guidelines governs whether changes to
the Guidelines may be given retroactive effect.” United States
v. Williams, 495 F. App’x 96, 97 (D.C. Cir. 2013) (citing Dillon
v. United States, 560 U.S. 817, 827, 130 S. Ct. 817 (2010)). One
retroactive circumstance is when an amendment to the Guidelines
is deemed a “clarification” as opposed to a “substantive
alteration.” Smaw, 22 F.3d at 333. A clarifying amendment
“changes nothing concerning the legal effect of the guidelines,
but merely clarifies what the Commission deems the guidelines to
have already meant[,]” and is therefore applied retroactively,
while a substantive change is not. Id.; accord United States v.
Bankston, 901 F.3d 1100, 1104 (9th Cir. 2018).
In distinguishing between clarifying and substantive
amendments, courts may look to whether the amendment is listed
in § 1B1.10(d) of the Guidelines, which lists amendments the
Sentencing Commission intended to apply retroactively. See
U.S.S.G. § 1B1.10(d); see also United v. Amaya-Ortiz, 296 F.
Supp. 3d 21, 25-26 (D.D.C. 2017) (declining to apply an
amendment retroactively because the Commission did not designate
it as one eligible for retroactive effect). A court may also
consider whether the Commission “characterized the amendment as
28
a clarification” and “whether the amendment resolves a circuit
conflict,” both of which tip in favor of a clarifying amendment
as opposed to a substantive change. See Bankston, 901 F.3d at
1104; United States v. Ynfante, 78 F.3d 677, 682 n.4 (D.C. Cir.
1996) (considering whether the Commission described an amendment
as a “mere clarification”).
The Sentencing Commission made two changes to the
Guidelines in Amendment 798 relevant to Mr. Crews’ arguments.
First, following the Supreme Court’s decision in Johnson
striking the ACCA’s residual clause, the Commission removed §
4B1.2(a)(2)’s identical residual clause. See U.S.S.G. Amend. 798
(determining that the residual clause “implicates many of the
same concerns cited by the Supreme Court in Johnson, and, as a
matter of policy, amend[ing] § 4B1.2(a)(2) to strike the
clause”). Second, the Commission provided a definition for the
term “extortion” in the Guidelines’ crime-of-violence
definition, later used in O’Connor’s crime-of-violence analysis
of Hobbs Act robbery under the enumerated offense clause. Id.;
O’Connor, 874 F.3d at 1150. Under Amendment 798, “extortion” is
defined as “obtaining something of value from another by the
wrongful use of (A) force, (B) fear of physical injury, or (C)
threat of physical injury.” U.S.S.G. Amend. 798. O’Connor
referred to this definition as “Guidelines extortion” to
“distinguish it from the ‘generic extortion’ definition courts
29
used before Amendment 798.” O’Connor, 874 F.3d at 1150; cf.
United States v. Moore, 149 F. Supp. 3d 177, 181 (D.D.C. 2016)
(stating that “[t]he Supreme Court has indicated that the
generic definition of extortion is obtaining something of value
from another with his consent induced by the wrongful use of
force, fear, or threats”) (citation and internal quotation marks
omitted). The Commission’s purpose in supplying this extortion
definition in the amendment was to “narrow[] the generic
definition of extortion by limiting the offense to those having
any element of force or an element of fear or threats ‘of
physical injury,’ as opposed to non-violent threats such as
injury to reputation.” U.S.S.G. Amend. 798.
While the D.C. Circuit has yet to consider whether
Amendment 798 is a clarifying or substantive change, the Court
concludes, based on persuasive authority, that reasonable
jurists would not debate that Amendment 798 is a substantive
change that does not apply retroactively. First, it is not
listed in § 1B1.10(d) of the Guidelines as an amendment that the
Commission intended to have retroactive effect. See U.S.S.G. §
1B1.10(d); see also United States v. Adkins, 883 F.3d 1207, 1212
(9th Cir. 2018) (noting that the Commission “has not used its
delegated authority to make Amendment 798 retroactive, as [it]
has done for a list of other amendments”). Second, Amendment 798
describes the above changes using the following verbs: (1)
30
“[r]emoving the residual clause” and “strik[ing]” it, and (2)
“narrow[ing] the generic definition of extortion by limiting the
offense.” U.S.S.G. Amend. 798. The actions of “removing” or
“striking” a clause and “narrowing” or “limiting” an offense are
not descriptions of clarifications but instead are substantive
alterations changing the legal effect of the Guidelines and are
therefore not applied retroactively. See Bankston, 901 F.3d at
1105 (concluding that “[t]he Commission’s language thus reflects
a substantive change . . . not a clarifying one”); Smaw, 22 F.3d
at 333. 12 Moreover, nowhere in Amendment 798 did the Commission
“specify that it was resolving a circuit split in making the
change.” Adkins, 883 F.3d at 1212; Bankston, 901 F.3d at 1104.
Instead, Amendment 798 entails the wholesale elimination of a
clause and the provision of an entirely new definition, which
“bespeak[] . . . substantive alteration” rather than
clarification. Smaw, 22 F.3d at 333.
Mr. Crews’ reliance on the Supreme Court’s decisions in
Welch and Johnson to argue for the retroactivity of Amendment
798 is therefore misguided. See Def.’s COA Mot., ECF No. 366 at
21. Not only was a different statute at issue in those cases
(the ACCA), see Mem. Op., ECF No. 360 at 68-69; but also in
12Mr. Crews’ argument that retroactivity should apply “[w]hen a
revision reduces the Guidelines range for a given offense” is
not encompassing of Amendment 798’s actual revisions that are at
issue here. See Def.’s COA Mot., ECF No. 366 at 20.
31
Welch, the Supreme Court was analyzing Johnson’s new
constitutional rule of criminal procedure under Teague, not an
amendment to the Sentencing Guidelines, which is evaluated under
its own retroactivity framework. See Welch, 578 U.S. at 128-29.
As Welch noted, Teague creates a “general bar on retroactivity
for procedural rules[,]” only recognizing retroactivity for
“[n]ew substantive rules” and “new ‘watershed rules of criminal
procedure’ . . . ‘implicating fundamental fairness and accuracy
of the criminal proceeding[.]’” Id. at 128. In contrast, the
test for the retroactivity of amendments to the Guidelines is
nearly the reverse, where it is not substantive but clarifying
amendments that are given retroactive effect. See Smaw, 22 F.3d
at 333; Amaya-Ortiz, 296 F. Supp. 3d at 25-26.
To support its conclusion that reasonable jurists would not
debate that Amendment 798 is not retroactive, below the Court
explains why it is not debatable that: 1) the amendment’s
deletion of the residual clause in § 4B1.2(a)(2) is not
retroactive; and 2) the amendment’s extortion definition,
impacting the analysis of Hobbs Act robbery under the enumerated
offense clause, is also not retroactive. Mr. Crews appears to
mix his arguments regarding these two clauses together. See
Def.’s COA Mot., ECF No. 366 at 18-22. Since “[n]othing
prohibits an amendment from being clarifying in part and
substantive in part[,]” United States v. Jackson, 901 F.3d 706,
32
709 (6th Cir. 2018); the Court, for the reasons below, concludes
that reasonable jurists could not debate whether Mr. Crews has
shown “a reasonable probability” that either change would apply
retroactively so as to result in his attempted Hobbs Act robbery
conviction not qualifying as a crime of violence under the 2014
Sentencing Guidelines, Strickland, 466 U.S. at 694.
First, regarding § 4B1.2(a)(2)’s former residual clause
that existed at the time of Mr. Crews’ sentencing, no court to
analyze the issue has retroactively applied the deletion of the
clause so as to negate a prior crime-of-violence determination
during sentencing. See, e.g., Adkins, 883 F.3d at 1211 (holding
that the deletion of § 4B1.2(a)’s residual clause does not have
retroactive effect); Jackson, 901 F.3d at 710 (finding that the
“deletion of the residual clause amount[ed] to a substantive
change” by “making a new, clearer law” thus “leaving untouched
our prior decision that Jackson’s attempted robbery conviction
counts as a crime of violence”); United States v. Gonzalez, 714
F. App’x 367, 370-71 (5th Cir. 2017) (finding that Amendment
798’s deletion of the residual clause “has none of the
characteristics of a change that, according to our case law, is
retroactive rather than substantive and thus prospective” and
holding the district court did not err in not considering the
amendment); United States v. Craig, 706 F. App’x 545, 550-51
(11th Cir. 2017) (classifying Amendment 798’s elimination of the
33
residual clause a “substantive, rather than clarifying” change
and rejecting consideration of it on appeal); United States v.
Raymonde, 858 F. App’x 263, 265-66 (10th Cir. 2021) (finding it
not “reasonably debatable that the district court violated
Raymonde’s due process rights when it relied on the residual
clause in identifying a second qualifying crime of violence[,]”
since Amendment 798 is “not entitled to retroactive benefit”);
United States v. Wurie, 867 F.3d 28, 37 (1st Cir. 2017)
(refusing to remand for resentencing given that Amendment 798’s
elimination of the residual clause was a “non-retroactive
substantive amendment[] to the Guidelines” post-dating the
defendant’s sentencing). 13
Contrary to Mr. Crews’ reliance on Welch, several of these
courts have found Welch to be “persuasive evidence that removal
of the residual clause is a substantive change to the Sentencing
Guidelines, not a clarifying one[,]” as Welch held that “Johnson
changed the substantive reach of the [ACCA by] altering the
13In United States v. Frates, 896 F.3d 93 (1st Cir. 2018), the
First Circuit remanded to allow reconsideration of the
defendant’s career offender status following the removal of the
residual clause but only because Amendment 798 was enacted while
the defendant’s appeal was pending. Id. at 102. The court
acknowledged this “quirk” for defendants who were sentenced
pursuant to § 4B1.2(a)’s residual clause prior to the existence
of Amendment 798 and whose appeals were pending when the
amendment took effect. Id. at 97. This “quirk” is not the case
for Mr. Crews, who was sentenced in 2014, long before Amendment
798 took effect on August 1, 2016.
34
range of conduct or the class of persons that the [Act]
punishes.” Adkins, 883 F.3d at 1213 (quoting Welch, 578 U.S. at
129) (internal quotation marks omitted). And since Johnson
altered the ACCA by eliminating “the identically-worded residual
clause” to that in § 4B1.2(a)(2), it follows that Amendment 798
“changed the ‘substantive reach’ of the Sentencing Guidelines,”
thus prohibiting any retroactive effect. Id.; see also Jackson,
901 F.3d at 710 (same conclusion). Therefore, reasonable jurists
could not debate that attempted Hobbs Act robbery qualified as a
crime of violence under the then-existing residual clause of §
4B1.2(a)(2) at the time Mr. Crews was sentenced. 14 See United
14As the government notes, see Gov’t’s COA Opp’n Mot., ECF No.
369 at 15; Courts of Appeal in several circuits have concluded
that the Supreme Court’s decision in Beckles v. United States,
137 S. Ct. 886, foreclosed the possibility of retroactively
extending Johnson’s holding to the former residual clause in §
4B1.2(a), see, e.g., United States v. Adkins, 883 F.3d 1207,
1213 (9th Cir. 2018) (“Beckles settled that Johnson does not
apply to the Sentencing Guidelines.”); United States v. Wurie,
867 F.3d 28, 33 (1st Cir. 2017) (“[T]he Supreme Court clarified
in Beckles that Johnson [] does not apply to section 4B1.2(a) of
the Guidelines[.]”); Atkinson v. United States, No. 17-1421,
2017 WL 8793327, at *1-2 (6th Cir. Oct. 23, 2017) (discussing
the defendant’s concession that “Beckles foreclosed his Johnson
claim” as applied to his career-offender designation under the
Guidelines); Delgado v. United States, 725 F. App’x 914, 916
(11th Cir. 2018) (noting Beckles’ conclusion that “the holding
in Johnson did not extend to the ‘residual’ clause formerly in
U.S.S.G. § 4B1.2(a)”); United States v. Thyberg, 684 F. App’x
733, 736 (10th Cir. 2017) (“Since [the defendant] filed his
[certificate of appealability] application, the Supreme Court
held [in Beckles that] Johnson does not apply to the Sentencing
Guidelines, including § 4B1.2(a)(2).”). Mr. Crews does not
proffer arguments concerning the effect of Beckles on any
35
States v. Eason, 953 F.3d 1184, 1195 (11th Cir. 2020) (noting
that prior to Amendment 798 in 2016, “[t]he residual clause
easily encompassed offenses like Hobbs Act robbery”).
Second, no court to analyze the issue has retroactively
applied Amendment 798’s added definition of extortion to negate
a prior crime-of-violence determination under the enumeration
clause of § 4B1.2(a)(2). For example, the Court of Appeals for
the Ninth Circuit has held that “Amendment 798’s alteration of
the definition of extortion in the Guidelines’ ‘crime of
violence’ section is not retroactive.” See Bankston, 901 F.3d at
1105 (“Because Bankston was sentenced before August 1, 2016, the
pre-amendment generic extortion definition applies[.]”).
Contrary to Mr. Crews’ arguments, O’Connor supports the
position that the Guidelines’ 2016 definition of extortion, or
“Guidelines extortion,” does not apply retroactively. In
O’Connor, the Tenth Circuit explained that “[t]he Guidelines
were amended in 2016 to include a definition of extortion that
is narrower than the [previously utilized] generic definition,”
and held that pursuant to this new definition, Hobbs Act robbery
is not a crime of violence under the enumerated clause of §
4B1.2(a) because “it is broader than both generic robbery and
Guidelines extortion, which are limited to threats to a person.”
retroactive effect of Amendment 798, so the Court does not
discuss this topic further.
36
874 F.3d at 1152-53. In reaching this conclusion, the Tenth
Circuit found that the Guidelines’ 2016 definition of extortion
is “ambiguous” and applied the rule of lenity to resolve the
ambiguity in Mr. O’Connor’s favor as “excluding injury and
threats of injury to property.” Id. at 1157-58.
While the Tenth Circuit vacated Mr. O’Connor’s sentence and
remanded for resentencing in light of its holding, of particular
significance is the fact that Mr. O’Connor was sentenced on
October 4, 2016, a little over two months after Amendment 798
took effect on August 1, 2016. See Brief of Appellee at 2,
United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017) (No.
16-3300). Therefore, O’Connor does not support allowing the
retroactive application of Guidelines extortion to negate the
prior crime-of-violence designation that occurred in Mr. Crews’
sentencing in 2014 pursuant to the generic definition of
extortion applicable at the time. Mr. Crews himself admits that
“[t]he standard in O’Conn[o]r was added by the Sentencing
Commission two years after [he] was sentenced[,]” Def.’s COA
Mot., ECF No. 366 at 21; and he has proffered no caselaw to
support reasonable jurists debating that O’Connor could be
applied retroactively to defendants sentenced prior to August 1,
2016, see generally id. The Court thus stands by its prior
determination that “O’Connor can be distinguished since the
standard in place at the time Mr. Crews was convicted included
37
threats to property” and its holding that “generic extortion, at
the time of Mr. Crews’ sentencing, covered any Hobbs Act robbery
offense not encompassed by the elements clause.” See Mem. Op.,
ECF No. 360 at 44 (emphasis added). 15
b. Reasonable Jurists Would Not Debate that the
“Crime of Violence” Definition Under §
4B1.2(a) of the Sentencing Guidelines at the
Time Mr. Crews Was Sentenced Included
Attempted Hobbs Act Robbery
The parties also dispute whether a certificate of
appealability should issue related to Mr. Crews’ ineffective
assistance of appellate counsel claim as to the Court’s
15In further support of the Court’s determination that O’Connor
did not apply Amendment 798’s definition of “extortion”
retroactively under the enumerated offense clause are several
other cases prospectively applying this change in definition
following the amendment’s August 1, 2016 effective date. See,
e.g., United States v. Green, 996 F.3d 176, 182-84 (4th Cir.
2021) (using, for a defendant sentenced in 2019, the Guidelines’
2016 definition of extortion to hold “like five other circuits
before us,” that Hobbs Act robbery is “not a crime of violence
under the career offender provision of the Sentencing
Guidelines” because “it extends to a broader range of conduct .
. . than § 4B1.2(a)(1)’s force clause or the offenses of robbery
and extortion enumerated in § 4B1.2(a)(2)”); United States v.
Camp, 903 F.3d 594, 604 (6th Cir. 2018) (“[W]e join the Tenth
Circuit in holding [for a defendant sentenced in 2017] that
Hobbs Act robbery is not a crime of violence under the
Guidelines” because it “criminalizes conduct that extends beyond
both generic robbery and Guidelines extortion[.]”); United
States v. Rodriguez, 770 F. App’x 18, 23 (3d Cir. 2019) (same
for a defendant also sentenced in 2017); United States v. Eason,
953 F.3d 1184, 1194-95 (11th Cir. 2020) (same for a defendant
sentenced on August 5, 2016); Bridges v. United States, 991 F.3d
793, 802-03 (7th Cir. 2021) (same for a defendant sentenced in
2018); United States v. Edling, 895 F.3d 1153, 1157-58 (9th Cir.
2018) (same for a defendant sentenced in October 2016 pursuant
to Nevada’s robbery statute).
38
conclusion that “attempted Hobbs Act [r]obbery[, like completed
Hobbs Act robbery,] satisfies the enumerated offense clause” of
§ 4B1.2(a). See Mem. Op., ECF No. 360 at 44-45; Def.’s COA Mot.,
ECF No. 366 at 24-26; Gov’t’s COA Opp’n Mot., ECF No. 369 at 18-
21.
Mr. Crews relies on the D.C. Circuit’s decisions in United
States v. Price, 990 F.2d 1367 (D.C. Cir. 1993) and United
States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) to argue that
his conviction for “‘attempted’ interference with commerce by
robbery[,] . . . coupled with [his] trial counsel’s specific
objection to [his] career offender status unquestionably should
have put appellate counsel on notice to brief a significant
legal issue that was specifically raised in the trial court.”
Def.’s COA Mot., ECF No. 366 at 24. In Price, the court held
that the Sentencing Commission exceeded its authority under 18
U.S.C. § 994(h) by including conspiracies to commit controlled
substance offenses in Application Note 1 to § 4B1.2, 16 i.e.,
allowing such conspiracies to factor into the career offender
designation analysis was improper when § 994(h) “plainly
fail[ed] to reach” them. 990 F.2d at 1368, 1370. Mr. Crews
argues that the same logic should be taken from conspiracies to
16At the time of Price, Application Note 1 to § 4B1.2 stated
that controlled substance offenses included “the offenses of
aiding and abetting, conspiring, and attempting to commit such
offenses.” Price, 990 F.2d at 1368 (emphasis in the original).
39
commit controlled substance crimes and applied to attempt
offenses qualifying as crimes of violence, such that his
appellate counsel should have been on notice to brief the legal
issue. See Def.’s COA Mot., ECF No. 366 at 24-25.
Mr. Crews also relies on one line in Winstead, in which the
court held that the commentary to the career offender guidelines
impermissibly expanded the definition of a “controlled substance
offense” to include attempts to commit such offenses (otherwise
known as inchoate offenses), 890 F.3d at 1091-92; 17 to contend
that his appellate counsel should have argued on appeal that §
4B1.2 does not include attempted crimes of violence, see Def.’s
COA Mot., ECF No. 366 at 24 n.2 (quoting Winstead that the
Commission’s “drafters declined to include attempt despite its
presence elsewhere”). The government responds that neither Price
nor Winstead supports Mr. Crews’ arguments, and the Court
agrees, standing by its original conclusion that its decision
“is not altered by the fact that Mr. Crews was convicted of
attempted Hobbs Act [r]obbery.” Mem. Op., ECF No. 360 at 44.
17Winstead analyzed whether the commentary to § 4B1.2, stating
that a controlled substance offense “include[s] the offenses of
aiding and abetting, conspiring, and attempting to commit such
offenses” was improper as compared to the Guidelines themselves.
890 F.3d at 1089-91. It concluded that “Section 4B1.2(b)
presents a very detailed ‘definition’ of controlled substance
offense that clearly excludes inchoate offenses.” Id. at 1091.
40
The Court finds that reasonable jurists would not debate
that the crime-of-violence definition under § 4B1.2(a) at the
time of Mr. Crews’ sentencing included attempt offenses like
attempted Hobbs Act robbery. Application Note 1 to § 4B1.2
specifically states that a crime of violence “include[s] the
offenses of aiding and abetting, conspiring, and attempting to
commit such offenses.” U.S.S.G. § 4B1.2, cmt., application n.1
(emphasis added). This is clear textual evidence that neither
Price nor Winstead disputes. Price’s holding was also narrow,
limited only to invalidating conspiracies to commit controlled
substance offenses under § 994(h), 990 F.2d at 1368-70; and it
was in fact superseded by the Commission’s 1998 amendment of §
4B1.1 to include inchoate crimes, see U.S.S.G. § 4B1.2 (defining
controlled substance offenses, like crimes of violence, to
include “aiding and abetting, conspiring, and attempting to
commit such offenses”); see also United States v. Powell, 161
F.3d 738, 739 (D.C. Cir. 1998) (discussing this 1998 amendment
that followed “this court’s decision in Price”).
Neither does Winstead’s holding support Mr. Crews’
ineffective assistance of appellate counsel claim. Winstead
specifically analyzed the definition of a “controlled substance
offense” under § 4B1.2(b) and distinguished Application Note 1’s
guidance with respect to whether crimes of violence include
inchoate offenses. See Winstead, 890 F.3d at 1091 n.12 (“We
41
address only the scope of the definition of ‘controlled
substance offense.’”). The Winstead court noted in relation to
crimes of violence that “the Commission showed within § 4B1.2
itself that it knows how to include attempted offenses when it
intends to do so.” Id. It thereafter distinguished “the
inclusion of attempt in § 4B1.2’s definition of ‘crime of
violence’” from the notable absence of attempt in the controlled
substance offense definition, noting “the drafters declined to
include attempt” in the latter despite its presence in the
former. Id. at 1092. As the government notes, “[t]his difference
is significant,” Gov’t’s COA Opp’n Mot., ECF No. 369 at 20; and
the Court rejects Mr. Crews’ assertion that “the principle
remains the same” despite his case involving a crime of violence
and Winstead and Price involving controlled substance offenses,
see Def.’s COA Mot., ECF No. 366 at 25. 18
Mr. Crews provides no other caselaw to support his claim
that appellate counsel should have been on notice about briefing
an alleged difference in the Court’s treatment between attempted
18The Court does not address the government’s arguments
concerning Winstead’s retroactivity, as Mr. Crews raises no
arguments on this point. See Gov’t’s COA Opp’n Mot., ECF No. 369
at 19-20. The Court noted in its Memorandum Opinion denying Mr.
Crews’ § 2255 Motion that “even if Winstead applied
retroactively, the elements clause specifically covers offenses
that have ‘as an element the use, attempted use, or threatened
use of physical force.’” Mem. Op., ECF No. 360 at 45 (citing §
4B1.2(a) (emphasis added)). Mr. Crews does not now raise any
arguments disputing this conclusion.
42
and completed Hobbs Act robbery for purposes of his career
offender designation. The Court thus reiterates its conclusion
that “[a]s for attempted extortion, at the time of Mr. Crews’
sentencing, the inclusion of attempt offenses in the commentary
to § 4B1.2 supported the assumption that attempted enumerated
offenses were crimes of violence” and that therefore “attempted
Hobbs Act robbery satisfies the enumerated offense clause.” 19
Mem. Op., ECF No. 360 at 45. Moreover, the Supreme Court has
held that Guidelines commentary “is authoritative unless it
violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.
Ct. 1913 (1993). Therefore, Application Note 1 to § 4B1.2, being
not inconsistent with the Guideline, settles for reasonable
jurists that a crime of violence includes an attempt to commit
such an offense. See U.S.S.G. § 4B1.2, cmt., application n.1.
Notwithstanding the above failures, Mr. Crews contends that
“[a]t a minimum,” he is entitled to “a hearing to address the
19The government correctly notes that Mr. Crews’ argument
surrounding Price and Winstead solely focuses on the Court’s
conclusion that attempted Hobbs Act robbery at the time of Mr.
Crews’ sentencing qualified as a crime of violence under §
4B1.2(a)’s enumerated offense clause and does not address the
Court’s dual holding that attempted Hobbs Act robbery also
satisfied the former residual clause of § 4B1.2(a) that existed
in 2014 when Mr. Crews was sentenced. See Govt’s COA Opp’n Mot.,
ECF No. 369 at 19. Mr. Crews proffers no arguments to that
effect regarding attempted versus completed Hobbs Act robbery.
43
conscious decision of appellate counsel to not pursue [this]
nonfrivolous, preserved claim on appeal[.]” Def.’s COA Mot., ECF
No. 366 at 26. However, a district court is entitled “to deny
summarily a Section 2255 motion without holding an evidentiary
hearing when ‘the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.’”
Agramonte, 366 F. Supp. 2d at 85 (quoting 28 U.S.C. § 2255).
Moreover, “a district judge’s decision not to hold an
evidentiary hearing before denying a § 2255 motion is generally
respected as a sound exercise of discretion” when, as here, “the
judge denying the § 2255 motion also presided over the trial in
which the petitioner claims to have been prejudiced.” United
States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996).
Contrary to Mr. Crews’ assertions, nothing in United States
v. Agramonte, 366 F. Supp. 2d 83 (D.D.C. 2005) supports
concluding that reasonable jurists would debate whether Mr.
Crews is entitled to an evidentiary hearing to address his
appellate counsel’s decision not to appeal his career offender
designation. See Def.’s COA Mot., ECF No. 366 at 26 (contending
that a hearing was necessary “to complete the record”). Although
appellate counsel in Agramonte submitted an affidavit discussing
his decision not to pursue certain issues on appeal, this
affidavit was not discussed during an evidentiary hearing;
rather, the D.C. Circuit determined that the defendant “failed
44
to present a creditable basis on which either relief should be
granted or a hearing need be held.” 366 F. Supp. 2d at 85-87.
Such is the case here, because, for the aforementioned reasons,
reasonable jurists would not debate that Mr. Crews’ appellate
counsel provided effective assistance of counsel given Mr.
Crews’ failure to establish a reasonable probability that
attempted Hobbs Act robbery would not qualify as a crime of
violence under any of § 4B1.2(a)’s three clauses at the time of
his sentencing.
Because Mr. Crews has not made “a substantial showing of
the denial of a constitutional right,” the Court DENIES his
motion for a certificate of appealability on his ineffective
assistance of appellate counsel claim. See 28 U.S.C. §
2253(c)(2).
C. Reasonable Jurists Would Not Debate that Mr. Crews’
Sentence Should Not Be Reconsidered Based Upon the
Supreme Court’s Rulings in Johnson, Dimaya, and Davis
Finally, Mr. Crews argues that reasonable jurists could
debate the application of the Supreme Court’s rulings in
Johnson, Dimaya, and Davis to his sentence, particularly
regarding whether the former residual clause of § 4B1.2(a)(2) is
void for vagueness. See Def.’s COA Mot., ECF No. 366 at 28;
Johnson, 576 U.S. at 606 (invalidating residual clause in the
ACCA, 18 U.S.C. § 924(e)(2)(B)); Dimaya, 138 S. Ct. at 1210(invalidating residual clause in the INA, 18 U.S.C. § 16(b));
45
Davis, 139 S. Ct. at 2319 (invalidating residual clause in 18
U.S.C. § 924(c)(3)(B)). In previously rejecting this argument,
the Court determined that “Johnson, Dimaya and Davis, all of
which overturned the residual clause in federal statutes, are
easily distinguished since they involved statutes that are not
at issue in Mr. Crews’s conviction.” Mem. Op., ECF No. 360 at
68-69. The Court then distinguished the Sentencing Guidelines
from the statutes at issue in Johnson, Dimaya and Davis, noting
that “by virtue of being advisory,” the Guidelines “do not
implicate the twin concerns underlying vagueness doctrine —
providing notice and preventing arbitrary enforcement.” Id. at
69 (quoting Beckles, 137 S. Ct. at 894). So even though the
former residual clause in § 4B1.2(a)(2) was identically worded
to the ACCA’s residual clause analyzed in Johnson, the Court
noted Beckles’ holding that the Guidelines are “not void for
vagueness.” Id. (citing Beckles, 137 S. Ct. at 895).
The only new challenge Mr. Crews brings to the Court’s
conclusion is in reference to United States v. Carter, 422 F.
Supp. 3d 299 (D.D.C. 2019). See Def.’s COA Mot., ECF No. 366 at
27-28. In Carter, Judge Ellen Segal Huvelle held that the former
residual clause in § 4B1.2 of the previously mandatory
Sentencing Guidelines was void for vagueness as applied to Mr.
Carter, who was sentenced pursuant to the guidelines before they
became advisory under United States v. Booker, 543 U.S. 220, 125
46
S. Ct. 738 (2005). Carter, 422 F. Supp. 3d at 317. Mr. Crews
calls attention to Judge Huvelle’s summary of Justice
Sotomayor’s concurrence in Beckles: “Justice Sotomayor [ ] wrote
separately to explain that although she did not agree with the
Court’s holding that the advisory Guidelines were not subject to
vagueness challenges, the majority’s analysis at least left open
the question whether the residual clause in the mandatory
Guidelines was unconstitutionally vague[.]” Id. at 303-04; see
Def.’s COA Mot., ECF No. 366 at 27-28. He argues that this
commentary indicates “concern with the broad sweep of Beckles,”
such that “reasonable jurists can differ on this issue of
constitutional significance.” Def.’s COA Mot., ECF No. 366 at
28.
As the government contends, see Gov’t’s COA Opp’n Mot., ECF
No. 369 at 22; Mr. Crews’ citation to this portion of Justice
Sotomayor’s concurrence is misguided, as any reference to open
questions regarding the treatment of the residual clause in the
previously mandatory Sentencing Guidelines is inapplicable to
Mr. Crews, who was sentenced pursuant to the post-Booker
advisory guidelines regime. In her concurrence, Justice
Sotomayor referenced “the formalistic distinction between
mandatory and advisory rules” and noted the open question of
“whether defendants sentenced in terms of imprisonment before”
Booker could “mount vagueness attacks on their sentences.”
47
Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring).
Because this question does not apply to Mr. Crews, reasonable
jurists would not disagree that the advisory guidelines are not
subject to vagueness challenges, Beckles, 137 S. Ct. at 890; and
that Johnson, Dimaya, and Davis do not affect Mr. Crews’
sentence, see Mem. Op., ECF No. 360 at 69.
Because Mr. Crews has not made “a substantial showing of
the denial of a constitutional right,” the Court DENIES his
motion for a certificate of appealability on his sentencing
reconsideration claim. See 28 U.S.C. § 2253(c)(2).
V. Conclusion
For the foregoing reasons, Mr. Crews’ motion for
certificate of appealability, ECF No. 366, is DENIED. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
December 12, 2022
48