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Calloway v. United States

United States District Court, D. South Carolina

June 13, 2017

Brian James Calloway, Movant,
v.
United States of America, Respondent.

          ORDER AND OPINION

          Margaret B. Seymour Senior United States District Judge.

         Movant Brian James Calloway is an inmate in custody of the Federal Bureau of Prisons. He currently is housed at FCI-Edgefield in Edgefield, South Carolina. On April 17, 2015, Movant, proceeding pro se, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, and a supplemental § 2255 motion on February 10, 2016. A second supplemental § 2255 motion was filed by counsel on June 10, 2016.

         I. FACTS AND PROCEDURAL HISTORY

         On June 26, 2006, Movant pleaded guilty to distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) (Count 2), and felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1), 924(a)(2), and 924(e)(1) (Count 3). A presentence investigation report (PSR) was prepared by the United States Probation Office. The PSR noted that Movant has a prior conviction for possession of cocaine with intent to distribute in the Court of General Sessions for Charleston County, South Carolina. ECF No. 61, ¶ 21. He also has a prior conviction for purse snatching in the Court of General Sessions for Orangeburg County, South Carolina. Id. ¶ 23. Movant's criminal history score was 6, for a criminal history category of III. However, Movant was designated as a career offender based upon his prior drug offense and prior crime of violence. Therefore, Movant's criminal history category became VI.

         The PSR provided for a combined adjusted offense level of 28. Because Movant was designated as a career offender, his offense level under U.S.S.G. § 4B1.1 became 34. Movant received a 3-level reduction for acceptance of responsibility, for a total offense level of 31. On April 17, 2007, Movant was sentenced under the Guidelines to 188 months imprisonment as to Count 2 and 120 months imprisonment as to Count 3, to run concurrently. Judgment was entered April 19, 2007.

         Movant asserts in his April 17, 2015, § 2255 motion that purse snatching is not a crime of violence and that he should not have been sentenced as a career offender. Respondent United States of America filed a motion to dismiss on May 18, 2015, asserting that Movant's § 2255 motion was untimely and that Movant raised a claim not cognizable on collateral review. Relying on United States v. Williams, Cr. No. 0:12-197-CMC, 2014 WL 6749095 (D.S.C. Dec. 1, 2014), Respondent also argued that, contrary to Movant's position, purse snatching is a crime of violence. On May 18, 2015, the court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Movant of the summary judgment procedures and the possible consequences if he failed to respond adequately. On May 20, 2015, Movant moved to supplement his § 2255 motion to include a claim of ineffective assistance of counsel. The government supplemented its motion to dismiss on June 2, 2015, to dispute Movant's claim of ineffective assistance of counsel. Movant filed a response to Respondent's motion to dismiss on June 15, 2015.

         On July 13, 2015, Movant again supplemented his § 2255 motion. Movant cited to Johnson v. United States, 133 S.Ct. 2551 (2015), wherein the Supreme Court found the “residual clause” of the Armed Career Criminal Act to be unconstitutionally vague. Movant argued his conviction for purse snatching falls under the “residual clause” of U.S.S.G. § 4B1.2, which contains similar language as that found unconstitutional in Johnson, and thus purse snatching cannot serve as a predicate offense. Movant also argued that the career offender enhancement violates the Ex Post Facto Clause of the United States Constitution. Movant made additional arguments in reliance on Johnson in supplements to his § 2255 motion filed on September 18, 2015, February 10, 2016, and April 25, 2016.

         Movant filed a motion for summary judgment on September 24, 2015, seeking immediate release from custody. He also filed a motion for release from custody on March 18, 2016. On May 24, 2016, counsel made an appearance on behalf of Movant. Counsel filed a supplemental § 2255 motion on June 10, 2016, arguing that Johnson operates to invalidate the “residual clause” of § 4B1.2(a)(2). Counsel noted that the Supreme Court had made Johnson retroactive on collateral review in Welch v. United States, 136 S.Ct. 1257 (2016). Finally, counsel asserted that purse snatching does not qualify as a “force clause” offense under U.S.S.G. § 4B1.2(a)(1). Also on June 10, 2016, counsel filed a motion for bond.

         Respondent filed timely responses to Movant's various motions, as well as a second motion to dismiss on July 13, 2016. On November 29, 2016, the court issued an order holding Movant's § 2255 motion in abeyance pending the Supreme Court's disposition of Beckles v. United States, a case wherein a defendant challenged his Guidelines sentence under Johnson. The Court decided Beckles on March 6, 2017. Respondent filed a supplemental response in opposition to Movant's § 2255 motion on May 26, 2017. Movant filed a response in opposition on June 6, 2017. The matter now is ripe for disposition.

         DISCUSSION

         A. Timeliness of § 2255 Motion

         The government contends that Movant's initial § 2255 motion is untimely under § 2255(f)(4), which provides:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run ...

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