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Croft v. United States

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

May 11, 2018

Travis Dequincy Croft, Petitioner,
v.
United States of America Respondent.

          ORDER AND OPINION

         This matter is before the court on Petitioner's Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 176.) Petitioner seeks relief from his sentence under United States v. Johnson, 135 S.Ct. 2551 (2015). (See ECF No. 176-1 at 7.) For the reasons stated below, the court DENIES Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 176).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2010, Petitioner was indicted for distribution of crack cocaine, being a felon in possession of a firearm, and using and carrying a firearm in furtherance of a drug trafficking crime. (ECF No. 2.) On February 22, 2011, Petitioner and the Government entered into a plea agreement whereby Petitioner agreed to plead guilty to the charges of distribution of crack cocaine and being a felon in possession of a firearm. (ECF No. 35.) A Presentence Investigation Report (“PSR”) was prepared by the U.S. Probation Office. (ECF No. 64.) The PSR determined that Petitioner was an armed career criminal based on two (2) prior convictions for distribution of crack cocaine and one (1) prior conviction for carjacking. (ECF No. 64 at ¶¶ 21, 27, 28, 52). On June 2, 2011, the court sentenced Petitioner to 188 months of incarceration. (ECF No. 82.) Petitioner filed an appeal which resulted in a remand for resentencing in order to allow Petitioner an opportunity to allocute. (ECF Nos. 92, 109, 112.) On October 9, 2012, Petitioner was resentenced (ECF No. 153) and his original sentence did not change (ECF No. 154). Petitioner appealed his sentence, and his sentence was affirmed by the United States Court of Appeals for the Fourth Circuit. (ECF No. 157, 169.)

         On January 7, 2016, Petitioner filed a pro se Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 176.) The Government responded (ECF No. 185), and Petitioner replied (ECF No. 197). On September 16, 2016, an amended Presentence Investigation Report was filed. (ECF No. 208.)

         On February 17, 2016, the Government filed a Motion for Summary Judgment on Petitioner's 28 U.S.C. § 2255 claim. (ECF No. 186.) Petitioner responded in opposition on March 24, 2016. (ECF No. 193.)

         II. LEGAL STANDARD

         In order to move for relief under 28 U.S.C. § 2255, Petitioner must plead that he was sentenced “(1) in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose such sentence, (3) that the sentence was in excess of the maximum authorized by law, or (4) that his sentence is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

         Pursuant to 28 U.S.C. § 2255(f), a petitioner has one year from the time his or her conviction becomes final to file a motion under this section, or one year from “the date on which the right asserted was initially recognized by the United States Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” See 28 U.S.C. § 2255(f)(1), (3).

         Because Petitioner is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se plaintiff's “inartful pleadings” may be sufficient enough to provide the opportunity to offer supporting evidence.)

         III. ANALYSIS

         Petitioner asserts that his sentence is in excess of the maximum authorized by law because he does not fall under the Armed Career Criminal Act (“ACCA”) given the Supreme Court's holding in Johnson. In Johnson v. United States, the United States Supreme Court held that the residual clause of the ACCA was unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution. 135 S.Ct. at 2563. The residual clause defines a violent felony as “[crimes that involve] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B). Johnson was decided on June 26, 2015, and presented a new right for defendants sentenced to the mandatory minimum sentence of fifteen (15) years based on the residual clause of the statutory definition of violent felony. In Welch v. United States, the Supreme Court held that Johnson had a retroactive effect in cases on collateral review. 136 S.Ct. 1257, 1268 (2016).

         In Johnson, the Supreme Court only ruled as to the ambiguity of the residual clause within the statutory definition of violent felony under 18 U.S.C. § 924(e)(2)(B)(ii). Johnson, 135 S.Ct. at 2563. The Supreme Court did not address the statutory definition of “serious drug offense”[1] or call into question any other part of the statutory definition of violent felony. Id.

         Petitioner's three predicate convictions were two (2) drug offenses and one (1) state carjacking conviction. Petitioner's two prior drug convictions qualify as “serious drug offenses;”[2]however, Petitioner posits that his carjacking conviction does not qualify as a “violent felony.”

         A. South Carolina's Crime of Carjacking Qualifies ...


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