United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
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.
FACTS AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
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
Timeliness of § 2255 Motion
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 ...