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Jennings v. United States

United States District Court, D. South Carolina, Charleston Division

October 19, 2016

Keyo Jennings, Petitioner,
v.
United States of America, Respondent.

          ORDER

          PATRICK MICHAEL DUFFY United States District Judge

         This matter is before the Court on several motions relating to federal prisoner Keyo Jennings' pursuit of relief from his sentence under 28 U.S.C. § 2255. First, Jennings has filed a § 2255 motion seeking relief under Descamps v. United States, 133 S.Ct. 2276 (2013), and United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013) (ECF No. 58). Second, the Government has filed a motion to dismiss Jennings' § 2255 motion (ECF No. 65). Third, Jennings has filed a supplemental motion for § 2255 relief under Johnson v. United States, 135 S.Ct. 2551 (2015) (ECF No. 71), which the Court treats as a motion to amend Jennings' original § 2255 motion. Fourth, Jennings has filed a motion to be released on bond pending the Court's decision on this matter (ECF No. 73). Fifth, and finally, the United States (“Government”) has filed a motion to stay proceedings pending the Supreme Court's decision in Beckles v. United States, 616 F. App'x 415 (11th Cir. 2015) (per curiam), cert. granted, 2016 WL 1029080 (U.S. June 27, 2016) (No. 15-8544) (ECF No. 72). Having thoroughly reviewed the record, the Court finds these matters suitable for disposition without a hearing. For the reasons stated herein, the Court grants Jennings' motion to amend, dismisses his § 2255 motion in part, denies his motion for release, and grants the Government's motion to stay.

         BACKGROUND/PROCEDURAL HISTORY

         In July 2009, Jennings pled guilty to possessing a firearm after being convicted of a felony. See 18 U.S.C. § 922(g)(1). In his § 2255 motion, Jennings attacks the sentence this Court imposed for that crime.

         Section 2K2.1 of the Guidelines addresses felon-in-possession offenses. That section sets a default base offense level of 12 for violations of § 922(g). See U.S.S.G. § 2K2.1(a)(7) (2008). However, that base offense level increases when certain aggravating factors are present. For example, defendants can face increased base offense levels when, inter alia, their criminal histories include felony convictions for crimes of violence. See Id. § 2K2.1(a)(1)-(4). Jennings' prior criminal history included two convictions in South Carolina state court for assault and battery of a high and aggravated nature (ABHAN). At Jennings' January 2010 sentencing, this Court found that those two ABHANs constituted “crimes of violence, ” giving Jennings a base offense level of 24. See § 2K2.1(a)(2). Jennings' § 2255 motion challenges that finding.

         After applying other portions of the Guidelines, the Court ultimately determined Jennings' recommended prison sentence range was 100-120 months and imposed a 120-month sentence. Jennings appealed. The Fourth Circuit affirmed. United States v. Jennings, 402 F. App'x 799 (4th Cir. 2010) (per curiam).

         Three years later, the Supreme Court's decision in Descamps led the Fourth Circuit to hold in Hemingway that South Carolina ABHAN does not constitute a “violent felony” under the Armed Career Criminal Act (“ACCA”). See 734 F.3d at 338. The ACCA's definition of “violent felony” is nearly identical to the definition of “crime of violence” that applies to § 2K2.1. Compare 18 U.S.C. § 924(e)(2)(B) with U.S.S.G. § 4B1.2(a). Seizing on that similarity, Jennings filed his § 2255 motion in June 2014, arguing that under Descamps and Hemingway, this Court improperly used his ABHAN convictions to apply the increased base offense level.

         Because there is a one-year limitation period on the filing of § 2255 motions, see 28 U.S.C. § 2255(f), the fact that Jennings sought relief over three years after his conviction became final seemed problematic. However, Jennings filed his motion shortly after a panel of the Fourth Circuit issued an opinion indicating that his Hemingway claim may have been subject to equitable tolling. See Whiteside v. United States, 748 F.3d 541 (2014) (“Whiteside I”). Because the Fourth Circuit later granted rehearing en banc for Whiteside I, this Court stayed this matter pending the results of that en banc review. After the en banc Fourth Circuit reversed the panel decision in Whiteside, see 775 F.3d 180 (2014) (“Whiteside II”), the Government moved to dismiss Jennings' § 2255 motion as untimely.

         By the time the Government moved to dismiss, the Supreme Court had issued Johnson, which invalidated a portion of the ACCA's violent-felony definition. See 135 S.Ct. at 2563. When Jennings responded to the Government's motion to dismiss, he suggested that, after Johnson, his sentence was no longer constitutional. After the Supreme Court made Johnson retroactively applicable to collateral challenges of ACCA-enhanced sentences, see Welch v. United States, 136 S.Ct. 1257 (2016), Jennings filed a pro se motion[1] formally asserting a Johnson claim.

         The Government has not yet directly responded to Jennings' pro se motion. Rather, it has filed a motion to stay this matter again while the Supreme Court considers Beckles, a case involving the potential retroactivity of Johnson to certain Guidelines-enhanced sentences. Jennings counters that he should be released on bond while this matter is pending. The Government has responded to Jennings' release motion.

         As this unusual procedural history indicates, the motions are now ripe for consideration.

         DISCUSSION

         The matters most immediately demanding the Court's attention are Jennings' motion for release and the Government's motion to stay. However, to analyze those motions properly, the Court must first clarify what claims are at issue here. Because it cannot make that clarification without resolving Jennings' motion to amend and the Government's motion to dismiss, it addresses those two motions first.

         I. Jennings' ...


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