United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY United States District Judge
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.
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.
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.
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).
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.
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.
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 formally asserting a
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.
unusual procedural history indicates, the motions are now
ripe for consideration.
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.