United States v. Crews

• Court: District Court, District of Columbia
• Decided: December 12, 2022
• Docket: Criminal No. 2011-0372
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Crim. Action No. 11-372-1 (EGS) DONNELL CREWS, Defendant.

MEMORANDUM OPINION

I. Introduction

Defendant Donnell Crews (“Mr. Crews” or “Defendant”) was

convicted by a jury of attempted interference with commerce by

robbery. See Judgment, ECF No. 266 at 1. 1 He was sentenced to 225

months of imprisonment. Id. at 2. Mr. Crews subsequently filed a

motion for a new trial or for a correction in his sentence

pursuant to 28 U.S.C. § 2255. See generally Motion Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a

Person in Federal Custody (“Def.’s § 2255 Mot.” or “§ 2255

Motion”), ECF No. 301.

In his § 2255 Motion, Mr. Crews made two arguments in favor

of setting aside his conviction or granting a new trial. First,

he argued ineffective assistance of counsel in violation of his

1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document.

1 Sixth Amendment rights. See Def.’s § 2255 Mot., ECF No. 301 at

5-9; Def.’s Suppl. Mot. to Correct Sentence (“Def.’s Suppl. §

2255 Mot.”), ECF No. 304 at 3; Def.’s Suppl. to Mot. for New

Trial (“Def.’s Add’l Suppl. § 2255 Mot.”), ECF No. 331 at 11,

19. Second, he argued that his sentence should be reconsidered

based upon the Supreme Court’s rulings in Johnson v. United

States, 576 U.S. 591, 135 S. Ct. 2551 (2015), and United States

v. Davis, 139 S. Ct. 2319 (2019). See Def.’s Add’l Suppl. § 2255

Mot., ECF No. 331 at 26. The Court denied Mr. Crews’ § 2255

Motion, along with the two supplemental § 2255 filings. See Mem.

Op., ECF No. 360 at 2.

Mr. Crews now moves for a certificate of appealability so

that he can appeal the Court’s decision. See Def.’s Mot. for

Certificate of Appealability (“Def.’s COA Mot.”), ECF No. 366.

Upon consideration of the motion, the response, the applicable

law and regulations, and the entire record and the materials

cited therein, for the reasons explained below, the Court DENIES

Mr. Crews’ motion for a certificate of appealability.

II. Factual and Procedural Background

The Court’s previous Memorandum Opinion set forth the facts

of this case in detail. See United States v. Crews, No. 11-372-1

(EGS), 2021 WL 5798033, at *1-4 (D.D.C. Dec. 7, 2021). What

follows is a summary of the facts and procedural history

necessary to provide context for Mr. Crews’ current motion.

2 A. Attempted Hobbs Act Robbery

On September 21, 2011, three men attempted to rob Hugh

Whitaker, an employee of a cash-in-transit company, while he

exited a CVS with approximately $10,000 in cash. United States

v. Crews, 856 F.3d 91, 92-93 (D.C. Cir. 2017). One of the men

drew a handgun and demanded the cash Mr. Whitaker was carrying.

Id. at 92. In response, Mr. Whitaker drew his own handgun and

the two men exchanged gunfire. Id. Mr. Whitaker retreated into

the CVS uninjured, and the three men — later identified as Mr.

Crews, Kirk Dean, and Anthony James — fled the scene. Id.

The police stopped Mr. Crews and Mr. James a few blocks

away, and a witness identified them as being two of the men who

had confronted Mr. Whitaker. Id. at 92-94. Meanwhile, a fourth

individual, Antwon Crowder, who had driven the other three men

to the CVS, drove the injured Mr. Dean to a hospital. Id. at 93-

94. Mr. Dean had sustained two gunshot wounds during the CVS

gunfire exchange, but he died from a separate gunshot wound,

unrelated to the attempted robbery, that he sustained in transit

from the CVS to the hospital. Id. at 94.

On December 20, 2011, a grand jury charged Mr. Crews with

four counts by indictment: (1) Conspiracy to interfere with

commerce by robbery in violation of 18 U.S.C. § 1951 (also known

as the Hobbs Act); (2) Attempted interference with commerce by

robbery and aiding and abetting in violation of 18 U.S.C. §§ 2

3 and 1951; (3) Using, carrying, or possessing a firearm during a

crime of violence in violation of 18 U.S.C. § 924(c); and (4)

Unlawful possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g). Indictment, ECF No. 12.

B. Trials and Sentencing Mr. Crews and Mr. Crowder were tried jointly, and the first

trial concluded with a hung jury; on August 14, 2013, the Court

declared a mistrial. Crews, 856 F.3d at 93-94. Following a

rescheduling, the defendants’ retrial began on February 10,

2014. See Minute Entry (Jan. 10, 2014). On March 12, 2014, the

jury found Mr. Crews guilty of attempted interference with

commerce by robbery. Verdict Form (Crews), ECF No. 221 at 1.

After Mr. Crowder decided to enter a guilty plea, the government

informed the Court that it planned to dismiss the remaining

counts against Mr. Crews and requested a sentencing date. See

Gov’t’s Mot. to Order Presentence Investigation Report and

Schedule Sentencing Date, ECF No. 234 at 1.

The U.S. Probation Office determined that Mr. Crews was a

career offender under § 4B1.1 of the Sentencing Guidelines,

based on his conviction in this case, a 2003 robbery conviction

in Maryland, and a 2005 carjacking conviction in Maryland.

Presentence Investigation Report (“PSI Report”), ECF No. 252 at

6-11. Accordingly, the Probation Office calculated Mr. Crews’

total offense level as 32, his criminal history category as VI,

4 and his guidelines range as 210 to 240 months. Sentencing

Recommendation (Crews), ECF No. 253 at 1. At sentencing, on

December 16, 2014, Mr. Crews’ counsel asserted that “either one

or both of the prior convictions are not qualifying offenses

such that [Mr. Crews] would now be a career offend[er].” Tr. of

Sentencing Proceedings, ECF No. 315 at 7. The Court did not

determine whether Mr. Crews was a career offender under the

guidelines and sentenced him to 225 months of imprisonment,

within the career-offender guideline range, followed by a three-

year term of supervised release. Judgment, ECF No. 266 at 1.

C. Appeal to Court of Appeals for the District of Columbia Circuit Mr. Crews, represented by new counsel, challenged two of

the Court’s evidentiary rulings on appeal. Crews, 856 F.3d at

93. First, Mr. Crews alleged that the Court erred by denying his

motion for a mistrial based on graphic testimony by an emergency

room nurse about Mr. Dean’s head wound, which was unrelated to

the robbery. Id. at 93-94, 96. Second, Mr. Crews claimed that

the Court improperly struck the testimony of his fiancée,

Vakeema Ensley, his only defense witness, after she asserted her

Fifth Amendment privilege during the government’s cross-

examination. Id. at 93. The Court of Appeals for the District of

Columbia Circuit (“D.C. Circuit”) rejected both claims and

affirmed Mr. Crews’ conviction on May 9, 2017. Id. at 101.

5 While Mr. Crews’ appeal to the D.C. Circuit was pending,

the Supreme Court in Johnson invalidated the “residual clause”

of the Armed Career Criminal Act (the “ACCA”) as

unconstitutionally vague. See Johnson, 576 U.S. at 606. At the

time of Mr. Crews’ sentencing in 2014, Section 4B1.2 of the

federal Sentencing Guidelines — defining a “crime of violence”

for purposes of determining whether a defendant is a career

offender under § 4B1.1 — included a residual clause identical to

the one invalidated in Johnson. See U.S.S.G. Suppl. App. C,

amend. 798 (effective Aug. 1, 2016). The Sentencing Commission

subsequently removed this clause from § 4B1.2’s crime-of-

violence definition in 2016. See id. However, in Beckles v.

United States, 137 S. Ct. 886 (2017), the Supreme Court held

that the Sentencing Guidelines, by virtue of being advisory

rather than mandatory, are not subject to constitutional

vagueness challenges and that “[t]he residual clause in §

4B1.2(a)(2) therefore is not void for vagueness[,]” id. at 892.

D. § 2255 Motion for New Trial On May 6, 2018, Mr. Crews, pro se, filed a motion under 28

U.S.C. § 2255, asserting five grounds for relief. See Def.’s §

2255 Mot., ECF No. 301 at 5. First, Mr. Crews contended that his

trial counsel was ineffective for failing to challenge his

career offender classification in the PSI Report. Id. at 5.

Second, he argued that his trial counsel was ineffective for

6 purportedly waiving his speedy trial rights without his consent

during the re-trial proceedings. Id. at 6. Third, he asserted

that his trial and appellate counsel were both ineffective for

failing to challenge the sufficiency of evidence on his charge

for using, carrying, or possessing a firearm during a crime of

violence, a charge for which he was not convicted. Id. at 7-8;

see also Verdict, ECF No. 221 at 1. Fourth, Mr. Crews contended

that his attempted Hobbs Act robbery conviction is not a crime

of violence following the decision of the Court of Appeals for

the Tenth Circuit (“Tenth Circuit”) in United States v.

O’Connor, 874 F.3d 1147 (10th Cir. 2017), and the Supreme

Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). 2

2 In denying Mr. Crews’ § 2255 Motion, the Court construed Mr. Crews’ claim regarding O’Connor and Dimaya not as challenging the elements of his conviction but rather as asserting that his conviction in this case is “not a crime of violence after these rulings.” Def.’s § 2255 Mot., ECF No. 301 at 8. Since the underlying logic of these cases is distinct from each other, the Court considered them separately. Compare O’Connor, 874 F. 3d at 1158 (holding that Hobbs Act robbery did not qualify as a crime of violence under the 2016 Sentencing Guidelines), with Dimaya, 138 S. Ct. at 1210 (invalidating the residual clause in the Immigration and Nationality Act (the “INA”), 18 U.S.C. § 16(b)). The Court considered whether Hobbs Act robbery is a crime of violence within its analysis of whether Mr. Crews’ counsel was ineffective for not challenging his career offender classification. See Mem. Op., ECF No. 360 at 38–52. The Court considered Mr. Crews’ claim regarding Dimaya alongside his argument that his sentence should be reconsidered following Johnson v. United States, 576 U.S. 591, 606, 135 S. Ct. 2551 (2015), (invalidating the residual clause in the ACCA), and United States v. Davis, 139 S. Ct. 2319, 2551 (2019) (invalidating the residual clause in 18 U.S.C. § 924(c)(3)(B)). See Mem. Op., ECF No. 360 at 67–69.

7 Id. at 9. Finally, he disputed the government’s ostensible

broadening of his indictment during trial, and his counsel’s

failure to object to the prosecution’s aiding-and-abetting

theory. Id. at 11.

On July 25, 2018, Mr. Crews filed a supplement to his §

2255 Motion, recognizing that his vagueness challenge to the

career offender guidelines (his fourth ground in his original §

2255 Motion) “must fail” following the Supreme Court’s decision

in Beckles. See Def.’s Suppl. § 2255 Mot., ECF No. 304 at 1.

Instead, Mr. Crews asserted a new claim of ineffective

assistance of appellate counsel for failing to challenge his

career offender designation on appeal. 3 See id. at 4.

On December 15, 2018, Mr. Crews filed a Motion to Appoint

Counsel, ECF No. 318, which the Court granted. Minute Order

(Jan. 2, 2019). On July 28, 2019, Mr. Crews’ counsel filed a

supplemental brief in further support of his § 2255 claims. See

generally Def.’s Add’l Suppl. § 2255 Mot., ECF No. 331. Mr.

Crews’ second supplement included two new ineffective assistance

3 In its Memorandum Opinion denying Mr. Crews’ § 2255 Motion, the Court treated this claim as replacing Mr. Crews’ first ground in his earlier claim that his trial counsel was ineffective for failing to challenge his career offender classification in the PSI Report. The record establishes that trial counsel preserved an objection to the career offender classification for appeal, arguing “that either one or both of the prior convictions are not qualifying offenses such that he would now be a career offend[er].” Tr. of Sentencing Proceedings, ECF No. 315 at 7.

8 of trial counsel claims: (1) that trial counsel was ineffective

for failing to request that the Court narrow its ruling striking

the entire testimony of Ms. Ensley; and (2) that trial counsel

was ineffective for not retaining experts in the fields of DNA

testing and DNA interpretation. Id. at 11, 19. Mr. Crews also

asked the Court to reconsider his sentence based upon the

Supreme Court’s decisions in Johnson v. United States, 576 U.S.

591, 135 S. Ct. 2551 (2015), and United States v. Davis, 139 S.

Ct. 2319 (2019). Id. at 26.

The Court denied Mr. Crews’ § 2255 Motion and its

accompanying two supplements on December 7, 2021. See Mem. Op.,

ECF No. 360 at 71. The Court found that Mr. Crews did not

receive ineffective assistance of trial or appellate counsel for

any of his timely claims, id. at 36-38; and it determined that

the two additional ineffective trial counsel claims raised in

the second supplemental brief were untimely because they did not

relate back to Mr. Crews’ timely filed § 2255 Motion, id. at 29-

34. The Court further found that equitable tolling was not

warranted, as any hardships Mr. Crews had referenced did not

rise to “extraordinary circumstances” preventing timely filing.

Id. at 34-36. Finally, the Court held that the Supreme Court’s

decisions in Johnson, Dimaya, and Davis did not impact Mr.

Crews’ sentence, as they did not involve residual clauses in

federal statutes applicable to his conviction. Id. at 68-69.

9 Subsequent to the Court’s issuance of its Order and

accompanying Memorandum Opinion, see ECF No. 359-60; Mr. Crews

timely filed a notice of appeal to the D.C. Circuit, see ECF No.

361; and the D.C. Circuit referred to this Court the

determination of whether a certificate of appealability is

warranted, see ECF No. 363. On April 24, 2022, Mr. Crews filed

the present motion for a certificate of appealability. See

generally Def.’s COA Mot., ECF No. 366. On July 5, 2022, the

government filed its opposition. See generally United States’

Opp’n to Def.’s Mot. for Certificate of Appealability (“Gov’t’s

COA Opp’n Mot.”), ECF No. 369. Mr. Crews has not filed a reply,

but his motion is ripe and ready for adjudication.

III. Legal Standard

A certificate of appealability must be issued for an

appellate court to hear an appeal from a “final order in a

proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). The

federal district court judge who rendered the judgment for which

appellate review is sought must either issue the certificate of

appealability or explain why it should not be issued. Fed. R.

App. P. 22(b)(1). Where a court denies a habeas claim on

procedural grounds, a certificate of appealability “should issue

when the prisoner shows, at least, that jurists of reason would

find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason

10 would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). As for whether an application states a valid claim of

the denial of a constitutional right, a certificate of

appealability may issue “only if the petitioner has made a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). To make this showing, the petitioner “need

not show that he should prevail on the merits. . . . Rather, he

must demonstrate that the issues are debatable among jurists of

reason; that a court could resolve the issues [in a different

manner]; or that the questions are adequate to deserve

encouragement to proceed further.” United States v. Mitchell,

216 F.3d 1126, 1130 (D.C. Cir. 2000) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)).

If the court issues the certificate of appealability, it

must specify which issues satisfy the substantial showing

requirement. Mitchell, 216 F.3d at 1130. If a district court

judge denies a request for a certificate of appealability, a

petitioner may request one from the circuit court judge. Fed. R.

App. P. 22(b)(1).

IV. Analysis

Mr. Crews seeks to appeal the Court’s denial of four of the

claims brought in his § 2255 Motion and accompanying

supplements: (1) his ineffective assistance of counsel claim

11 that his trial attorney failed to request that the Court narrow

its ruling striking the full testimony of Ms. Ensley; (2) his

ineffective assistance of counsel claim that his trial attorney

failed to retain experts in the fields of DNA testing and

interpretation in his defense; (3) his ineffective assistance of

counsel claim that his appellate attorney failed to challenge

his career offender designation on appeal with the argument that

attempted Hobbs Act robbery did not qualify as a “crime of

violence” under § 4B1.2 of the Sentencing Guidelines at the time

of his sentencing; and (4) his argument that the Court should

reconsider his sentence pursuant to the Supreme Court’s

decisions in Johnson, Dimaya, and Davis. See Def.’s COA Mot.,

ECF No. 366 at 6-28.

Since the Court denied the first two § 2255 claims on

procedural grounds, it first discusses its procedural rulings on

these two claims in relation to the present motion, before

addressing its substantive rulings pertaining to the merits of

Mr. Crews’ latter two claims.

A. Reasonable Jurists Would Not Debate that Mr. Crews’ Ineffective Assistance of Trial Counsel Claims Raised in His Second Supplement Are Procedurally Time-Barred Mr. Crews argues that reasonable jurists could debate

whether the two ineffective assistance of trial counsel claims

raised in his second § 2255 supplement — pertaining to the

Court’s striking of Ms. Ensley’s testimony and the lack of DNA

12 experts retained in Mr. Crews’ defense — should be considered

timely, or alternatively, deemed eligible for equitable tolling.

See Def.’s COA Mot., ECF No. 366 at 6-17. First, Mr. Crews

argues, as he did in his second § 2255 supplement, that he

timely alleged that his trial counsel was ineffective in raising

the issue of Ms. Ensley’s testimony, albeit “in the incorrect

portion of the [original] form pro se motion.” Def.’s COA Mot.,

ECF No. 366 at 6; see also Def.’s § 2255 Mot., ECF No. 301 at 2.

He contends, as he did before, that “[a] liberal construction of

[his] pro se Motion to Vacate should be construed in favor of

allowing [his] claim[,]” given courts’ tendency to apply less

stringent standards to pro se pleadings. See Def.’s COA Mot.,

ECF No. 366 at 9 (citing Webb v. United States Veterans

Initiative, 993 F.3d 970, 972 (D.C. Cir. 2021)).

A defendant generally must file a motion for relief under §

2255 within a year of “the date on which the facts supporting

the claim or claims presented could have been discovered through

the exercise of due diligence.” 28 U.S.C. § 2255(f)(4). As the

Court discussed in its Memorandum Opinion, Mr. Crews’ judgment

became final on August 7, 2017, and his deadline to file for §

2255 relief expired one year later, on August 7, 2018. Mem. Op.,

ECF No. 360 at 30. While Mr. Crews’ original pro se motion and

his first supplemental motion were timely filed on May 1, 2018

and July 25, 2018, respectively, Mr. Crews’ second supplement,

13 submitted almost a year after his filing deadline on July 28,

2019 and raising the claim related to Ms. Ensley’s testimony,

was not timely. Id. at 30-31. This determination is not a

debatable ruling.

Additionally, reasonable jurists would not debate whether

Mr. Crews’ improper placement of the Ms. Ensley issue in his pro

se motion warrants liberally construing the claim as timely

filed. In this motion, Mr. Crews again points to part 9(f) of

his pro se § 2255 filing, summarizing the “Grounds Raised” on

his appeal to the D.C. Circuit, as the timely source for his

second supplemental claim regarding Ms. Ensley’s testimony, see

Def.’s COA Mot, ECF No. 366 at 9; even though this claim is not

also reiterated in the section for the five enumerated grounds

for his § 2255 Motion, see Def.’s § 2255 Mot., ECF No. 301 at 2,

4-10. Even acknowledging Mr. Crews’ continued argument that pro

se filings are “to be liberally construed,” Def.’s COA Mot., ECF

No. 366 at 8; the Court is unpersuaded that conflating the

grounds for direct appeal and the grounds for collateral attack

in the § 2255 motion form is sufficient in a reasonable jurist’s

mind to permit such liberal construction in favor of a

timeliness finding, see Mem. Op., ECF No. 360 at 33 (reaching

the same conclusion, since “Mr. Crews [did] not mention Ms.

Ensley’s testimony anywhere under the five grounds for his §

2255 motion”).

14 In the alternative, Mr. Crews argues that even if the Court

continues to deem this supplemental claim untimely, reasonable

jurists could differ as to whether “the misplacement of the

issue related to Ms. Ensley’s testimony” is sufficient to

entitle him to equitable tolling that would excuse the late

filing. Def.’s COA Mot., ECF No. 366 at 12.

The doctrine of equitable tolling applies to the filing of

§ 2255 motions. United States v. McDade, 699 F.3d 499, 504 (D.C.

Cir. 2012) (citing Holland v. Florida, 560 U.S. 631 (2010)). A

petitioner is “entitled to equitable tolling only if he shows:

(1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way and

prevented timely filing.” Id. (citation and internal quotation

marks omitted). “The diligence required for equitable tolling

purposes is ‘reasonable diligence.’” Holland, 560 U.S. at 653.

The district court’s task is to consider the facts of the case

“to determine whether they indeed constitute extraordinary

circumstances sufficient to warrant equitable relief.” Id. at

653-54. Equitable tolling for habeas petitioners is decided “on

a case-by-case basis,” id. at 650; and “is to be employed only

sparingly” and where “extraordinary circumstances beyond a

prisoner’s control make it impossible to file a petition on

time,” United States v. Cicero, 214 F.3d 199, 203 (D.C. Cir.

2000) (citations and internal quotation marks omitted). “To

15 count as sufficiently ‘extraordinary,’ . . . ‘the circumstances

that caused a litigant’s delay must have been beyond [his]

control’; in other words, the delay ‘cannot be a product of that

litigant’s own misunderstanding of the law or tactical mistakes

in litigation.’” Head v. Wilson, 792 F.3d 102, 107 (D.C. Cir.

2015) (quoting Menominee Indian Tribe of Wis. v. United States,

764 F.3d 51, 58 (D.C. Cir. 2014)).

Yet, contrary to the standard that the delay “cannot be a

product of [a] litigant’s own misunderstanding of the law,” id.;

this is the very argument Mr. Crews makes, asserting he should

be entitled to equitable tolling even though his ineffective

assistance claim regarding Ms. Ensley’s testimony “was entered

by [him] in the wrong box in the form” and was “a clerical error

in the placement of the issue[,]” Def.’s COA Mot., ECF No. 366

at 9, 12. While the Court acknowledged that Mr. Crews has shown

some diligence in pursuing his rights, see Mem. Op., ECF No. 360

at 35; he raises no new “extraordinary circumstances” that made

it impossible for him to supplement his § 2255 Motion on time,

and jurists of reason have rejected the idea that “pro se

representation alone or procedural ignorance” can rise to “rare

and exceptional” circumstances meriting equitable tolling, see

Johnson v. United States, 544 U.S. 295, 311, 125 S. Ct. 1571

(2005); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000);

Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006).

16 Mr. Crews next argues that the ineffective assistance of

counsel claim in his second supplement about his trial

attorney’s failure to retain a DNA expert relates back to his

originally filed § 2255 Motion and should be deemed timely. See

Def.’s COA Mot., ECF No. 366 at 12-17. He contends that since he

raised ineffective assistance of counsel claims “in general

terms in the pro se motion,” the “specific added instance of

ineffectiveness” pertaining to his trial counsel’s “failure to

retain a DNA expert to challenge the government’s expert” arises

from “precisely the same common core of operative facts” and

thus relates back to his original § 2255 filing. Id. at 16-17.

The government responds that “[r]easonable jurists would not

debate the correctness of [the] Court’s ruling that raising one

allegation of ineffective assistance of counsel does not suffice

to preserve all others.” Gov’t’s COA Opp’n Mot., ECF No. 369 at

13. The Court agrees and reiterates its prior determination that

this supplemental ineffective assistance of trial counsel claim

does not debatably relate back to those claims raised in Mr.

Crews’ timely filings. See Mem. Op., ECF No. 360 at 33-34.

Claims filed beyond § 2255’s one-year limitation period are

timely if they relate back to the timely claims, meaning that

they “arise from the same core facts as the timely filed claims,

and not [if] the new claims depend upon events separate in ‘both

time and type’ from the originally raised episodes.” Mayle v.

17 Felix, 545 U.S. 644, 645, 125 S. Ct. 2562 (2005). The Federal

Rules of Civil Procedure establish that “[a]n amendment to a

pleading relates back to the date of the original pleading when”

the claim asserted in the amended pleading “arose out of the

conduct, transaction, or occurrence set out — or attempted to be

set out — in the original pleading[.]” Fed. R. Civ. P. 15(c)(1).

Courts have rejected the contention that timely alleging

one ineffective assistance of counsel claim gives the petitioner

unlimited leeway to file untimely amendments raising some other

type of ineffective assistance claim based upon distinct

conduct. See, e.g., Schneider v. McDaniel, 674 F.3d 1144, 1151-

52 (9th Cir. 2012) (allowing any general ineffective assistance

of counsel claim to support “the relation back of any and every”

such claim “would stand the Supreme Court’s decision in Mayle on

its head”); United States v. Ciampi, 419 F.3d 20, 24 (1st Cir.

2005) (negating the satisfaction of Rule 15’s “relation back”

standard “merely by raising some type of ineffective assistance

in the original petition, and then amending [it] to assert

another ineffective assistance claim based upon an entirely

distinct type of attorney misfeasance”); Davenport v. United

States, 217 F.3d 1341, 1346 (11th Cir. 2000) (same conclusion

regarding untimely ineffective assistance of counsel claims that

“arose from separate conduct and occurrences in both time and

type” from the original claims); United States v. Palmer, 902 F.

18 Supp. 2d 1, 15 (D.D.C. 2012) (same conclusion, as allowing

different factual theories “linked only by a common generalized

legal theory to a timely claim would undermine [the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”)]’s goal of finality in convictions”).

Because Mr. Crews’ ineffective assistance claim related to

his trial counsel’s failure to retain a DNA expert in his

defense is based on occurrences “totally separate and distinct,

in both time and type” from those raised in his timely § 2255

filings, reasonable jurists could not debate whether this claim

is timely based on Rule 15’s relation back test. United States

v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002) (internal quotation

marks omitted). 4

Since the Court finds that reasonable jurists could not

debate whether the Court was correct in its procedural rulings

as to the two claims in Mr. Crews’ second supplemental briefing,

4 The parties proffer differing views of McClain v. LeGrand, No. 3:14-cv-00269, 2019 WL 1646393 (D. Nev. Apr. 16, 2019). Compare Def.’s COA Mot., ECF No. 366 at 15-17, with Gov’t’s COA Opp’n Mot., ECF No. 369 at 12-13. The McClain court determined that an amended claim related back to an original claim as to the denial of effective assistance of counsel when both claims were united by facts pertaining to counsel’s failure to advise the defendant that he could file a direct appeal and failed to file an appeal on his behalf. McClain, 2019 WL 1646393, at *3. The factual circumstances thus stemmed from the same “core of operative facts.” Id. The Court reads McClain only to support its conclusion, as there are no facts in Mr. Crews’ timely § 2255 claims that relate to his counsel’s actions (or lack thereof) as to the use of DNA experts at his trial.

19 it need not reach the issue of whether Mr. Crews’ motion states

a valid claim of the denial of a constitutional right as to

those two claims. Slack, 529 U.S. at 484. Therefore, the Court

DENIES Mr. Crews’ motion for a certificate of appealability on

his ineffective assistance of trial counsel claims in his second

supplement.

B. Reasonable Jurists Would Not Debate that Mr. Crews’ Appellate Counsel Was Not Ineffective for Not Challenging His Sentencing as a Career Offender Mr. Crews reiterates the ineffective assistance of counsel

claim made in his first § 2255 supplement related to his

appellate counsel’s failure to challenge his career offender

sentencing designation on appeal. See Def.’s COA Mot., ECF No.

366 at 26; Def.’s Suppl. § 2255 Mot., ECF No. 304 at 4. He

argues that because “newly appointed appellate counsel did not

raise the issue related to the career offender status[,]” which

his “trial counsel raised and preserved an objection to” on the

record, there is a “significant legal claim related to [his]

Sixth Amendment right to effective assistance of appellate

counsel.” Def.’s COA Mot., ECF No. 366 at 22, 26. At the time of

Mr. Crews’ sentencing in 2014, to be a career offender, a

defendant had to have at least two prior felony convictions of

either a crime of violence or a controlled-substance offense.

U.S.S.G. § 4B1.1(a) (2014). A “crime of violence” was defined as

follows:

20 (a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that – (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2(a). Subsection (a)(1) is referred to as the

“elements” or “force” clause; the non-italicized portion of

subsection (2) is the “enumerated offense” clause; and the

italicized text is the “residual” clause. See United States v.

Carr, 314 F. Supp. 3d 272, 274 n.1 (D.D.C. 2018).

Because Mr. Crews’ ineffective assistance of appellate

counsel claim was timely raised in his first supplement, the

Court addressed the substantive merits of this Sixth Amendment

claim in ruling on his § 2255 Motion, first determining whether

attempted Hobbs Act robbery qualified as a crime of violence at

the time of Mr. Crews’ sentencing under the enumerated offense

and residual clauses of § 4B1.2(a) of the Sentencing Guidelines. 5

See Mem. Op., ECF No. 360 at 40-52. After answering in the

5 Because the government conceded that “Hobbs Act robbery may be committed by using force against property (and not just force against a person)” and is “broader than the elements-clause definition of a crime of violence[,]” the Court did not address whether attempted Hobbs Act robbery qualified as a crime of violence under that clause. See Mem. Op., ECF No. 360 at 40.

21 affirmative for both clauses, the Court determined that Mr.

Crews’ ineffective assistance of appellate counsel claim failed

because “each of [his] three convictions meets the requirements

for a ‘crime of violence’ under § 4B1.2(a)[.]” 6 Id. at 40.

Claims of ineffective assistance of counsel are governed by

the standard set forth in Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052 (1984). To succeed, a defendant must show

both deficient performance by his attorney and prejudice.

Strickland, 466 U.S. at 687. Strickland requires a party

claiming ineffective assistance of trial counsel to show that:

(1) “counsel’s representation fell below an objective standard

of reasonableness . . . [measured] under prevailing professional

norms[,]” (the performance prong); and (2) the “deficiencies in

counsel’s performance . . . [were] prejudicial to the defense”

6 The Court also addressed whether Mr. Crews’ prior convictions — a 2003 robbery conviction in Maryland and a 2005 carjacking conviction in Maryland — qualified as crimes of violence under the 2014 Sentencing Guidelines. See Mem. Op., ECF No. 360 at 52- 64. It determined that the robbery conviction was a crime of violence under the residual clause of § 4B1.2(a), see id. at 52- 58; and that the carjacking conviction was a crime of violence under the elements and residual clauses of § 4B1.2(a), see id. at 58-64. In the present motion, Mr. Crews does not challenge the Court’s classification of these two convictions as crimes of violence, instead focusing on his attempted Hobbs Act robbery conviction. See Def.’s COA Mot., ECF No. 366 at 18-22. The Court thus only addresses Mr. Crews’ ineffective assistance of appellate counsel claim in relation to whether it is debatable that attempted Hobbs Act robbery qualified as a crime of violence for purposes of Mr. Crews’ career offender designation at the time of sentencing.

22 (the prejudice prong). Id. at 688, 692. To establish deficient

performance, the moving party must show “specific errors made by

trial counsel.” United States v. Cronic, 466 U.S. 648, 666, 104

S. Ct. 2039 (1984). To establish prejudice, the moving party

must demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694.

“Judicial scrutiny of counsel’s performance must be highly

deferential[,]” and the defendant must overcome “a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Id. at 689.

The standard for evaluating claims of ineffective

assistance of appellate counsel is the same as that for

evaluating claims of ineffective assistance of trial counsel.

See Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746 (2000);

United States v. Agramonte, 366 F. Supp. 2d 83, 86 (D.D.C.

2005). “[A]ppellate counsel who files a merits brief need not

(and should not) raise every nonfrivolous claim, but rather may

select from among them in order to maximize the likelihood of

success on appeal.” Robbins, 528 U.S. at 288; see also

Agramonte, 366 F. Supp. 2d at 86-87 (“It is settled that a

criminal defendant has no constitutional right to have appellate

counsel raise every nonfrivolous issue that the defendant

requests.”). Although it is “possible to bring a Strickland

23 claim based on counsel’s failure to raise a particular claim” on

appeal, “it is difficult to demonstrate that counsel was

incompetent” on that ground. Robbins, 528 U.S. at 288.

To succeed on his claim of ineffective assistance of

appellate counsel, Mr. Crews must establish “a reasonable

probability” that attempted Hobbs Act robbery did not qualify as

a crime of violence under any of the three available definitions

in § 4B1.2(a) of the 2014 Guidelines: (1) the “elements” or

“force” clause; 7 (2) the “enumerated offense” clause; 8 or (3) the

“residual” clause. 9 See Strickland, 466 U.S. at 694. In assessing

7 Under the elements clause, the Court looks “to the elements of the crime to determine whether, by its terms, commission of the crime inherently (i.e., categorically) requires the kind of force” that is contemplated in § 4B1.2(a). United States v. Brown, 892 F.3d 385, 402 (D.C. Cir. 2018). 8 The inquiry under the enumerated offense clause compares the

elements of the conviction with the elements of any potentially applicable § 4B1.2(a)(2) enumerated offenses to see if they match. See Mathis v. United States, 579 U.S. 500, 505-06, 136 S. Ct. 2243 (2016). If the Guidelines do not supply a definition of the enumerated offense, the Court determines the generic definition by considering “a wide range of sources . . . , including federal and state statutes, the Model Penal Code, dictionaries, and treatises.” United States v. O’Connor, 874 F.3d 1147, 1151 (10th Cir. 2017). If the scope of conduct covered by the defendant’s crime of conviction is broader than what the enumerated offense definition would cover, the crime of violence sentencing enhancement is not valid under the enumerated offense clause. See United States v. Titties, 852 F.3d 1257, 1265-66 (10th Cir. 2017). 9 The inquiry under the residual clause remains categorical,

considering “whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of th[e] particular offender.” James v. United States, 550 U.S. 192, 202, 127 S. Ct. 1586 (2007).

24 whether an offense is a crime of violence, courts use a

“categorical approach,” focusing on “how the law defines the

offense” and not on how “an individual offender might have

committed it on a particular occasion.” United States v. Haight,

892 F.3d 1271, 1279 (D.C. Cir. 2018) (quoting Begay v. United

States, 553 U.S. 137, 141, 128 S. Ct. 1581 (2008)). If the

statute on which the conviction was based defines the offense in

a way that includes, at its margins, conduct beyond what the

guidelines contemplate as a crime of violence, the offense is

not categorically a crime of violence. See id. In other words,

the question is whether “the least of th[e] acts criminalized .

. . are encompassed by the generic federal offense.” United

States v. Carr, 946 F.3d 598, 601 (D.C. Cir. 2020) (citing

Moncrieffe v. Holder, 569 U.S. 184, 191, 135 S. Ct. 1678 (2013)

(internal quotation marks omitted)).

1. Reasonable Jurists Would Not Debate that Attempted Hobbs Act Robbery Qualified as a “Crime of Violence” Under § 4B1.2(a) of the Sentencing Guidelines at the Time Mr. Crews Was Sentenced Mr. Crews contends that “a certificate of appealability

should issue related to the Hobbs Act, residual clause claims,

and career offender claims.” Def.’s COA Mot., ECF No. 366 at 22.

He argues that reasonable jurists could debate whether attempted

Hobbs Act robbery qualifies as a crime of violence because of an

amendment to the Sentencing Guidelines that occurred after his

25 sentencing, which he claims should “be applied retroactively.”

Id. at 20. The government notes that Mr. Crews never specifies

which amendment he is referring to, though is presumably correct

in identifying U.S.S.G. Suppl. App. C, amend. 798 (effective

Aug. 1, 2016) (“Amendment 798” or “U.S.S.G. Amend. 798”) as the

amendment in question. See Gov’t’s COA Opp’n Mot., ECF No. 369

at 14. Mr. Crews contends that a retroactive application of

Amendment 798, supported by the Tenth Circuit’s 2017 decision in

O’Connor 10 and the Supreme Court’s 2016 decision in Welch v.

United States, 578 U.S. 120, 136 S. Ct. 1257 (2016), 11 could lead

“reasonable jurists [to] have differing opinions concerning the

application of the guidelines to a particular group of

offenses[,]” i.e., the Guidelines’ present crime-of-violence

definition applied to Mr. Crews’ attempted Hobbs Act robbery

conviction. Def.’s COA Mot., ECF No. 366 at 21-22.

The government responds that “[j]urists of reason would not

find it debatable whether [Mr. Crews’] argument states a valid

claim of the denial of a constitutional right” because he

10 See supra note 2 (discussing O’Connor’s holding that Hobbs Act robbery is not a crime of violence under the 2016 Guidelines). 11 In Welch, the Supreme Court held — pursuant to the framework

of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989) “for determining whether a new rule applies to cases on collateral review” — that its prior decision in Johnson v. United States to invalidate the ACCA’s residual clause as unconstitutionally vague was a substantive decision with retroactive effect. Welch v. United States, 578 U.S. 120, 128-30, 136 S. Ct. 1257 (2016).

26 “conflates not only” decisions applying the ACCA with those

applying § 4B1.2(a), “but also the enumerated-offense and

residual clauses of § 4B1.2(a)(2).” Gov’t’s COA Opp’n Mot., ECF

No. 369 at 14. The government contends that Welch “has [no]

bearing on whether Amendment 798 applies retroactively[,]” as it

utilized the Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060

(1989) framework for assessing the retroactive effect of new

rules of criminal procedure, which is inapplicable to

determining the retroactive effect of amendments to the

Guidelines. See id. at 14-16. The government also argues that

O’Connor does not aid Mr. Crews’ argument for retroactivity, as

the Tenth Circuit did not: (1) apply Amendment 798’s definition

of “extortion” retroactively under the enumerated offense

clause; or (2) consider whether attempted Hobbs Act robbery was

a crime of violence under § 4B1.2(a)(2)’s former residual

clause, which the government argues leads Mr. Crews to “ma[k]e

the requisite showing as to neither [clause].” Id. at 16-18.

a. Reasonable Jurists Would Not Debate that Amendment 798 to the Sentencing Guidelines, Enacted After Mr. Crews Was Sentenced, Does Not Apply to Him Retroactively Courts generally must use the Sentencing Guidelines in

effect at the time of sentencing. United States v. Green, 952

F.2d 414, 416 (D.C. Cir. 1991); United States v. Smaw, 22 F.3d

330, 333 (D.C. Cir. 1994) (noting the Sentencing Commission’s

directive to courts to “use the Guidelines Manual in effect on

27 the date that the defendant is sentenced” except in “specified

exceptional cases”) (citing U.S.S.G. § 1B1.11(a)). However, the

Supreme Court has determined “that the policy statement in §

1B1.10 of the Sentencing Guidelines governs whether changes to

the Guidelines may be given retroactive effect.” United States

v. Williams, 495 F. App’x 96, 97 (D.C. Cir. 2013) (citing Dillon

v. United States, 560 U.S. 817, 827, 130 S. Ct. 817 (2010)). One

retroactive circumstance is when an amendment to the Guidelines

is deemed a “clarification” as opposed to a “substantive

alteration.” Smaw, 22 F.3d at 333. A clarifying amendment

“changes nothing concerning the legal effect of the guidelines,

but merely clarifies what the Commission deems the guidelines to

have already meant[,]” and is therefore applied retroactively,

while a substantive change is not. Id.; accord United States v.

Bankston, 901 F.3d 1100, 1104 (9th Cir. 2018).

In distinguishing between clarifying and substantive

amendments, courts may look to whether the amendment is listed

in § 1B1.10(d) of the Guidelines, which lists amendments the

Sentencing Commission intended to apply retroactively. See

U.S.S.G. § 1B1.10(d); see also United v. Amaya-Ortiz, 296 F.

Supp. 3d 21, 25-26 (D.D.C. 2017) (declining to apply an

amendment retroactively because the Commission did not designate

it as one eligible for retroactive effect). A court may also

consider whether the Commission “characterized the amendment as

28 a clarification” and “whether the amendment resolves a circuit

conflict,” both of which tip in favor of a clarifying amendment

as opposed to a substantive change. See Bankston, 901 F.3d at

1104; United States v. Ynfante, 78 F.3d 677, 682 n.4 (D.C. Cir.

1996) (considering whether the Commission described an amendment

as a “mere clarification”).

The Sentencing Commission made two changes to the

Guidelines in Amendment 798 relevant to Mr. Crews’ arguments.

First, following the Supreme Court’s decision in Johnson

striking the ACCA’s residual clause, the Commission removed §

4B1.2(a)(2)’s identical residual clause. See U.S.S.G. Amend. 798

(determining that the residual clause “implicates many of the

same concerns cited by the Supreme Court in Johnson, and, as a

matter of policy, amend[ing] § 4B1.2(a)(2) to strike the

clause”). Second, the Commission provided a definition for the

term “extortion” in the Guidelines’ crime-of-violence

definition, later used in O’Connor’s crime-of-violence analysis

of Hobbs Act robbery under the enumerated offense clause. Id.;

O’Connor, 874 F.3d at 1150. Under Amendment 798, “extortion” is

defined as “obtaining something of value from another by the

wrongful use of (A) force, (B) fear of physical injury, or (C)

threat of physical injury.” U.S.S.G. Amend. 798. O’Connor

referred to this definition as “Guidelines extortion” to

“distinguish it from the ‘generic extortion’ definition courts

29 used before Amendment 798.” O’Connor, 874 F.3d at 1150; cf.

United States v. Moore, 149 F. Supp. 3d 177, 181 (D.D.C. 2016)

(stating that “[t]he Supreme Court has indicated that the

generic definition of extortion is obtaining something of value

from another with his consent induced by the wrongful use of

force, fear, or threats”) (citation and internal quotation marks

omitted). The Commission’s purpose in supplying this extortion

definition in the amendment was to “narrow[] the generic

definition of extortion by limiting the offense to those having

any element of force or an element of fear or threats ‘of

physical injury,’ as opposed to non-violent threats such as

injury to reputation.” U.S.S.G. Amend. 798.

While the D.C. Circuit has yet to consider whether

Amendment 798 is a clarifying or substantive change, the Court

concludes, based on persuasive authority, that reasonable

jurists would not debate that Amendment 798 is a substantive

change that does not apply retroactively. First, it is not

listed in § 1B1.10(d) of the Guidelines as an amendment that the

Commission intended to have retroactive effect. See U.S.S.G. §

1B1.10(d); see also United States v. Adkins, 883 F.3d 1207, 1212

(9th Cir. 2018) (noting that the Commission “has not used its

delegated authority to make Amendment 798 retroactive, as [it]

has done for a list of other amendments”). Second, Amendment 798

describes the above changes using the following verbs: (1)

30 “[r]emoving the residual clause” and “strik[ing]” it, and (2)

“narrow[ing] the generic definition of extortion by limiting the

offense.” U.S.S.G. Amend. 798. The actions of “removing” or

“striking” a clause and “narrowing” or “limiting” an offense are

not descriptions of clarifications but instead are substantive

alterations changing the legal effect of the Guidelines and are

therefore not applied retroactively. See Bankston, 901 F.3d at

1105 (concluding that “[t]he Commission’s language thus reflects

a substantive change . . . not a clarifying one”); Smaw, 22 F.3d

at 333. 12 Moreover, nowhere in Amendment 798 did the Commission

“specify that it was resolving a circuit split in making the

change.” Adkins, 883 F.3d at 1212; Bankston, 901 F.3d at 1104.

Instead, Amendment 798 entails the wholesale elimination of a

clause and the provision of an entirely new definition, which

“bespeak[] . . . substantive alteration” rather than

clarification. Smaw, 22 F.3d at 333.

Mr. Crews’ reliance on the Supreme Court’s decisions in

Welch and Johnson to argue for the retroactivity of Amendment

798 is therefore misguided. See Def.’s COA Mot., ECF No. 366 at

21. Not only was a different statute at issue in those cases

(the ACCA), see Mem. Op., ECF No. 360 at 68-69; but also in

12Mr. Crews’ argument that retroactivity should apply “[w]hen a revision reduces the Guidelines range for a given offense” is not encompassing of Amendment 798’s actual revisions that are at issue here. See Def.’s COA Mot., ECF No. 366 at 20.

31 Welch, the Supreme Court was analyzing Johnson’s new

constitutional rule of criminal procedure under Teague, not an

amendment to the Sentencing Guidelines, which is evaluated under

its own retroactivity framework. See Welch, 578 U.S. at 128-29.

As Welch noted, Teague creates a “general bar on retroactivity

for procedural rules[,]” only recognizing retroactivity for

“[n]ew substantive rules” and “new ‘watershed rules of criminal

procedure’ . . . ‘implicating fundamental fairness and accuracy

of the criminal proceeding[.]’” Id. at 128. In contrast, the

test for the retroactivity of amendments to the Guidelines is

nearly the reverse, where it is not substantive but clarifying

amendments that are given retroactive effect. See Smaw, 22 F.3d

at 333; Amaya-Ortiz, 296 F. Supp. 3d at 25-26.

To support its conclusion that reasonable jurists would not

debate that Amendment 798 is not retroactive, below the Court

explains why it is not debatable that: 1) the amendment’s

deletion of the residual clause in § 4B1.2(a)(2) is not

retroactive; and 2) the amendment’s extortion definition,

impacting the analysis of Hobbs Act robbery under the enumerated

offense clause, is also not retroactive. Mr. Crews appears to

mix his arguments regarding these two clauses together. See

Def.’s COA Mot., ECF No. 366 at 18-22. Since “[n]othing

prohibits an amendment from being clarifying in part and

substantive in part[,]” United States v. Jackson, 901 F.3d 706,

32 709 (6th Cir. 2018); the Court, for the reasons below, concludes

that reasonable jurists could not debate whether Mr. Crews has

shown “a reasonable probability” that either change would apply

retroactively so as to result in his attempted Hobbs Act robbery

conviction not qualifying as a crime of violence under the 2014

Sentencing Guidelines, Strickland, 466 U.S. at 694.

First, regarding § 4B1.2(a)(2)’s former residual clause

that existed at the time of Mr. Crews’ sentencing, no court to

analyze the issue has retroactively applied the deletion of the

clause so as to negate a prior crime-of-violence determination

during sentencing. See, e.g., Adkins, 883 F.3d at 1211 (holding

that the deletion of § 4B1.2(a)’s residual clause does not have

retroactive effect); Jackson, 901 F.3d at 710 (finding that the

“deletion of the residual clause amount[ed] to a substantive

change” by “making a new, clearer law” thus “leaving untouched

our prior decision that Jackson’s attempted robbery conviction

counts as a crime of violence”); United States v. Gonzalez, 714

F. App’x 367, 370-71 (5th Cir. 2017) (finding that Amendment

798’s deletion of the residual clause “has none of the

characteristics of a change that, according to our case law, is

retroactive rather than substantive and thus prospective” and

holding the district court did not err in not considering the

amendment); United States v. Craig, 706 F. App’x 545, 550-51

(11th Cir. 2017) (classifying Amendment 798’s elimination of the

33 residual clause a “substantive, rather than clarifying” change

and rejecting consideration of it on appeal); United States v.

Raymonde, 858 F. App’x 263, 265-66 (10th Cir. 2021) (finding it

not “reasonably debatable that the district court violated

Raymonde’s due process rights when it relied on the residual

clause in identifying a second qualifying crime of violence[,]”

since Amendment 798 is “not entitled to retroactive benefit”);

United States v. Wurie, 867 F.3d 28, 37 (1st Cir. 2017)

(refusing to remand for resentencing given that Amendment 798’s

elimination of the residual clause was a “non-retroactive

substantive amendment[] to the Guidelines” post-dating the

defendant’s sentencing). 13

Contrary to Mr. Crews’ reliance on Welch, several of these

courts have found Welch to be “persuasive evidence that removal

of the residual clause is a substantive change to the Sentencing

Guidelines, not a clarifying one[,]” as Welch held that “Johnson

changed the substantive reach of the [ACCA by] altering the

13In United States v. Frates, 896 F.3d 93 (1st Cir. 2018), the First Circuit remanded to allow reconsideration of the defendant’s career offender status following the removal of the residual clause but only because Amendment 798 was enacted while the defendant’s appeal was pending. Id. at 102. The court acknowledged this “quirk” for defendants who were sentenced pursuant to § 4B1.2(a)’s residual clause prior to the existence of Amendment 798 and whose appeals were pending when the amendment took effect. Id. at 97. This “quirk” is not the case for Mr. Crews, who was sentenced in 2014, long before Amendment 798 took effect on August 1, 2016.

34 range of conduct or the class of persons that the [Act]

punishes.” Adkins, 883 F.3d at 1213 (quoting Welch, 578 U.S. at

129) (internal quotation marks omitted). And since Johnson

altered the ACCA by eliminating “the identically-worded residual

clause” to that in § 4B1.2(a)(2), it follows that Amendment 798

“changed the ‘substantive reach’ of the Sentencing Guidelines,”

thus prohibiting any retroactive effect. Id.; see also Jackson,

901 F.3d at 710 (same conclusion). Therefore, reasonable jurists

could not debate that attempted Hobbs Act robbery qualified as a

crime of violence under the then-existing residual clause of §

4B1.2(a)(2) at the time Mr. Crews was sentenced. 14 See United

14As the government notes, see Gov’t’s COA Opp’n Mot., ECF No. 369 at 15; Courts of Appeal in several circuits have concluded that the Supreme Court’s decision in Beckles v. United States, 137 S. Ct. 886, foreclosed the possibility of retroactively extending Johnson’s holding to the former residual clause in § 4B1.2(a), see, e.g., United States v. Adkins, 883 F.3d 1207, 1213 (9th Cir. 2018) (“Beckles settled that Johnson does not apply to the Sentencing Guidelines.”); United States v. Wurie, 867 F.3d 28, 33 (1st Cir. 2017) (“[T]he Supreme Court clarified in Beckles that Johnson [] does not apply to section 4B1.2(a) of the Guidelines[.]”); Atkinson v. United States, No. 17-1421, 2017 WL 8793327, at *1-2 (6th Cir. Oct. 23, 2017) (discussing the defendant’s concession that “Beckles foreclosed his Johnson claim” as applied to his career-offender designation under the Guidelines); Delgado v. United States, 725 F. App’x 914, 916 (11th Cir. 2018) (noting Beckles’ conclusion that “the holding in Johnson did not extend to the ‘residual’ clause formerly in U.S.S.G. § 4B1.2(a)”); United States v. Thyberg, 684 F. App’x 733, 736 (10th Cir. 2017) (“Since [the defendant] filed his [certificate of appealability] application, the Supreme Court held [in Beckles that] Johnson does not apply to the Sentencing Guidelines, including § 4B1.2(a)(2).”). Mr. Crews does not proffer arguments concerning the effect of Beckles on any

35 States v. Eason, 953 F.3d 1184, 1195 (11th Cir. 2020) (noting

that prior to Amendment 798 in 2016, “[t]he residual clause

easily encompassed offenses like Hobbs Act robbery”).

Second, no court to analyze the issue has retroactively

applied Amendment 798’s added definition of extortion to negate

a prior crime-of-violence determination under the enumeration

clause of § 4B1.2(a)(2). For example, the Court of Appeals for

the Ninth Circuit has held that “Amendment 798’s alteration of

the definition of extortion in the Guidelines’ ‘crime of

violence’ section is not retroactive.” See Bankston, 901 F.3d at

1105 (“Because Bankston was sentenced before August 1, 2016, the

pre-amendment generic extortion definition applies[.]”).

Contrary to Mr. Crews’ arguments, O’Connor supports the

position that the Guidelines’ 2016 definition of extortion, or

“Guidelines extortion,” does not apply retroactively. In

O’Connor, the Tenth Circuit explained that “[t]he Guidelines

were amended in 2016 to include a definition of extortion that

is narrower than the [previously utilized] generic definition,”

and held that pursuant to this new definition, Hobbs Act robbery

is not a crime of violence under the enumerated clause of §

4B1.2(a) because “it is broader than both generic robbery and

Guidelines extortion, which are limited to threats to a person.”

retroactive effect of Amendment 798, so the Court does not discuss this topic further.

36 874 F.3d at 1152-53. In reaching this conclusion, the Tenth

Circuit found that the Guidelines’ 2016 definition of extortion

is “ambiguous” and applied the rule of lenity to resolve the

ambiguity in Mr. O’Connor’s favor as “excluding injury and

threats of injury to property.” Id. at 1157-58.

While the Tenth Circuit vacated Mr. O’Connor’s sentence and

remanded for resentencing in light of its holding, of particular

significance is the fact that Mr. O’Connor was sentenced on

October 4, 2016, a little over two months after Amendment 798

took effect on August 1, 2016. See Brief of Appellee at 2,

United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017) (No.

16-3300). Therefore, O’Connor does not support allowing the

retroactive application of Guidelines extortion to negate the

prior crime-of-violence designation that occurred in Mr. Crews’

sentencing in 2014 pursuant to the generic definition of

extortion applicable at the time. Mr. Crews himself admits that

“[t]he standard in O’Conn[o]r was added by the Sentencing

Commission two years after [he] was sentenced[,]” Def.’s COA

Mot., ECF No. 366 at 21; and he has proffered no caselaw to

support reasonable jurists debating that O’Connor could be

applied retroactively to defendants sentenced prior to August 1,

2016, see generally id. The Court thus stands by its prior

determination that “O’Connor can be distinguished since the

standard in place at the time Mr. Crews was convicted included

37 threats to property” and its holding that “generic extortion, at

the time of Mr. Crews’ sentencing, covered any Hobbs Act robbery

offense not encompassed by the elements clause.” See Mem. Op.,

ECF No. 360 at 44 (emphasis added). 15

b. Reasonable Jurists Would Not Debate that the “Crime of Violence” Definition Under § 4B1.2(a) of the Sentencing Guidelines at the Time Mr. Crews Was Sentenced Included Attempted Hobbs Act Robbery The parties also dispute whether a certificate of

appealability should issue related to Mr. Crews’ ineffective

assistance of appellate counsel claim as to the Court’s

15In further support of the Court’s determination that O’Connor did not apply Amendment 798’s definition of “extortion” retroactively under the enumerated offense clause are several other cases prospectively applying this change in definition following the amendment’s August 1, 2016 effective date. See, e.g., United States v. Green, 996 F.3d 176, 182-84 (4th Cir. 2021) (using, for a defendant sentenced in 2019, the Guidelines’ 2016 definition of extortion to hold “like five other circuits before us,” that Hobbs Act robbery is “not a crime of violence under the career offender provision of the Sentencing Guidelines” because “it extends to a broader range of conduct . . . than § 4B1.2(a)(1)’s force clause or the offenses of robbery and extortion enumerated in § 4B1.2(a)(2)”); United States v. Camp, 903 F.3d 594, 604 (6th Cir. 2018) (“[W]e join the Tenth Circuit in holding [for a defendant sentenced in 2017] that Hobbs Act robbery is not a crime of violence under the Guidelines” because it “criminalizes conduct that extends beyond both generic robbery and Guidelines extortion[.]”); United States v. Rodriguez, 770 F. App’x 18, 23 (3d Cir. 2019) (same for a defendant also sentenced in 2017); United States v. Eason, 953 F.3d 1184, 1194-95 (11th Cir. 2020) (same for a defendant sentenced on August 5, 2016); Bridges v. United States, 991 F.3d 793, 802-03 (7th Cir. 2021) (same for a defendant sentenced in 2018); United States v. Edling, 895 F.3d 1153, 1157-58 (9th Cir. 2018) (same for a defendant sentenced in October 2016 pursuant to Nevada’s robbery statute).

38 conclusion that “attempted Hobbs Act [r]obbery[, like completed

Hobbs Act robbery,] satisfies the enumerated offense clause” of

§ 4B1.2(a). See Mem. Op., ECF No. 360 at 44-45; Def.’s COA Mot.,

ECF No. 366 at 24-26; Gov’t’s COA Opp’n Mot., ECF No. 369 at 18-

21.

Mr. Crews relies on the D.C. Circuit’s decisions in United

States v. Price, 990 F.2d 1367 (D.C. Cir. 1993) and United

States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) to argue that

his conviction for “‘attempted’ interference with commerce by

robbery[,] . . . coupled with [his] trial counsel’s specific

objection to [his] career offender status unquestionably should

have put appellate counsel on notice to brief a significant

legal issue that was specifically raised in the trial court.”

Def.’s COA Mot., ECF No. 366 at 24. In Price, the court held

that the Sentencing Commission exceeded its authority under 18

U.S.C. § 994(h) by including conspiracies to commit controlled

substance offenses in Application Note 1 to § 4B1.2, 16 i.e.,

allowing such conspiracies to factor into the career offender

designation analysis was improper when § 994(h) “plainly

fail[ed] to reach” them. 990 F.2d at 1368, 1370. Mr. Crews

argues that the same logic should be taken from conspiracies to

16At the time of Price, Application Note 1 to § 4B1.2 stated that controlled substance offenses included “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” Price, 990 F.2d at 1368 (emphasis in the original).

39 commit controlled substance crimes and applied to attempt

offenses qualifying as crimes of violence, such that his

appellate counsel should have been on notice to brief the legal

issue. See Def.’s COA Mot., ECF No. 366 at 24-25.

Mr. Crews also relies on one line in Winstead, in which the

court held that the commentary to the career offender guidelines

impermissibly expanded the definition of a “controlled substance

offense” to include attempts to commit such offenses (otherwise

known as inchoate offenses), 890 F.3d at 1091-92; 17 to contend

that his appellate counsel should have argued on appeal that §

4B1.2 does not include attempted crimes of violence, see Def.’s

COA Mot., ECF No. 366 at 24 n.2 (quoting Winstead that the

Commission’s “drafters declined to include attempt despite its

presence elsewhere”). The government responds that neither Price

nor Winstead supports Mr. Crews’ arguments, and the Court

agrees, standing by its original conclusion that its decision

“is not altered by the fact that Mr. Crews was convicted of

attempted Hobbs Act [r]obbery.” Mem. Op., ECF No. 360 at 44.

17Winstead analyzed whether the commentary to § 4B1.2, stating that a controlled substance offense “include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses” was improper as compared to the Guidelines themselves. 890 F.3d at 1089-91. It concluded that “Section 4B1.2(b) presents a very detailed ‘definition’ of controlled substance offense that clearly excludes inchoate offenses.” Id. at 1091.

40 The Court finds that reasonable jurists would not debate

that the crime-of-violence definition under § 4B1.2(a) at the

time of Mr. Crews’ sentencing included attempt offenses like

attempted Hobbs Act robbery. Application Note 1 to § 4B1.2

specifically states that a crime of violence “include[s] the

offenses of aiding and abetting, conspiring, and attempting to

commit such offenses.” U.S.S.G. § 4B1.2, cmt., application n.1

(emphasis added). This is clear textual evidence that neither

Price nor Winstead disputes. Price’s holding was also narrow,

limited only to invalidating conspiracies to commit controlled

substance offenses under § 994(h), 990 F.2d at 1368-70; and it

was in fact superseded by the Commission’s 1998 amendment of §

4B1.1 to include inchoate crimes, see U.S.S.G. § 4B1.2 (defining

controlled substance offenses, like crimes of violence, to

include “aiding and abetting, conspiring, and attempting to

commit such offenses”); see also United States v. Powell, 161

F.3d 738, 739 (D.C. Cir. 1998) (discussing this 1998 amendment

that followed “this court’s decision in Price”).

Neither does Winstead’s holding support Mr. Crews’

ineffective assistance of appellate counsel claim. Winstead

specifically analyzed the definition of a “controlled substance

offense” under § 4B1.2(b) and distinguished Application Note 1’s

guidance with respect to whether crimes of violence include

inchoate offenses. See Winstead, 890 F.3d at 1091 n.12 (“We

41 address only the scope of the definition of ‘controlled

substance offense.’”). The Winstead court noted in relation to

crimes of violence that “the Commission showed within § 4B1.2

itself that it knows how to include attempted offenses when it

intends to do so.” Id. It thereafter distinguished “the

inclusion of attempt in § 4B1.2’s definition of ‘crime of

violence’” from the notable absence of attempt in the controlled

substance offense definition, noting “the drafters declined to

include attempt” in the latter despite its presence in the

former. Id. at 1092. As the government notes, “[t]his difference

is significant,” Gov’t’s COA Opp’n Mot., ECF No. 369 at 20; and

the Court rejects Mr. Crews’ assertion that “the principle

remains the same” despite his case involving a crime of violence

and Winstead and Price involving controlled substance offenses,

see Def.’s COA Mot., ECF No. 366 at 25. 18

Mr. Crews provides no other caselaw to support his claim

that appellate counsel should have been on notice about briefing

an alleged difference in the Court’s treatment between attempted

18The Court does not address the government’s arguments concerning Winstead’s retroactivity, as Mr. Crews raises no arguments on this point. See Gov’t’s COA Opp’n Mot., ECF No. 369 at 19-20. The Court noted in its Memorandum Opinion denying Mr. Crews’ § 2255 Motion that “even if Winstead applied retroactively, the elements clause specifically covers offenses that have ‘as an element the use, attempted use, or threatened use of physical force.’” Mem. Op., ECF No. 360 at 45 (citing § 4B1.2(a) (emphasis added)). Mr. Crews does not now raise any arguments disputing this conclusion.

42 and completed Hobbs Act robbery for purposes of his career

offender designation. The Court thus reiterates its conclusion

that “[a]s for attempted extortion, at the time of Mr. Crews’

sentencing, the inclusion of attempt offenses in the commentary

to § 4B1.2 supported the assumption that attempted enumerated

offenses were crimes of violence” and that therefore “attempted

Hobbs Act robbery satisfies the enumerated offense clause.” 19

Mem. Op., ECF No. 360 at 45. Moreover, the Supreme Court has

held that Guidelines commentary “is authoritative unless it

violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.

Ct. 1913 (1993). Therefore, Application Note 1 to § 4B1.2, being

not inconsistent with the Guideline, settles for reasonable

jurists that a crime of violence includes an attempt to commit

such an offense. See U.S.S.G. § 4B1.2, cmt., application n.1.

Notwithstanding the above failures, Mr. Crews contends that

“[a]t a minimum,” he is entitled to “a hearing to address the

19The government correctly notes that Mr. Crews’ argument surrounding Price and Winstead solely focuses on the Court’s conclusion that attempted Hobbs Act robbery at the time of Mr. Crews’ sentencing qualified as a crime of violence under § 4B1.2(a)’s enumerated offense clause and does not address the Court’s dual holding that attempted Hobbs Act robbery also satisfied the former residual clause of § 4B1.2(a) that existed in 2014 when Mr. Crews was sentenced. See Govt’s COA Opp’n Mot., ECF No. 369 at 19. Mr. Crews proffers no arguments to that effect regarding attempted versus completed Hobbs Act robbery.

43 conscious decision of appellate counsel to not pursue [this]

nonfrivolous, preserved claim on appeal[.]” Def.’s COA Mot., ECF

No. 366 at 26. However, a district court is entitled “to deny

summarily a Section 2255 motion without holding an evidentiary

hearing when ‘the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.’”

Agramonte, 366 F. Supp. 2d at 85 (quoting 28 U.S.C. § 2255).

Moreover, “a district judge’s decision not to hold an

evidentiary hearing before denying a § 2255 motion is generally

respected as a sound exercise of discretion” when, as here, “the

judge denying the § 2255 motion also presided over the trial in

which the petitioner claims to have been prejudiced.” United

States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996).

Contrary to Mr. Crews’ assertions, nothing in United States

v. Agramonte, 366 F. Supp. 2d 83 (D.D.C. 2005) supports

concluding that reasonable jurists would debate whether Mr.

Crews is entitled to an evidentiary hearing to address his

appellate counsel’s decision not to appeal his career offender

designation. See Def.’s COA Mot., ECF No. 366 at 26 (contending

that a hearing was necessary “to complete the record”). Although

appellate counsel in Agramonte submitted an affidavit discussing

his decision not to pursue certain issues on appeal, this

affidavit was not discussed during an evidentiary hearing;

rather, the D.C. Circuit determined that the defendant “failed

44 to present a creditable basis on which either relief should be

granted or a hearing need be held.” 366 F. Supp. 2d at 85-87.

Such is the case here, because, for the aforementioned reasons,

reasonable jurists would not debate that Mr. Crews’ appellate

counsel provided effective assistance of counsel given Mr.

Crews’ failure to establish a reasonable probability that

attempted Hobbs Act robbery would not qualify as a crime of

violence under any of § 4B1.2(a)’s three clauses at the time of

his sentencing.

Because Mr. Crews has not made “a substantial showing of

the denial of a constitutional right,” the Court DENIES his

motion for a certificate of appealability on his ineffective

assistance of appellate counsel claim. See 28 U.S.C. §

2253(c)(2).

C. Reasonable Jurists Would Not Debate that Mr. Crews’ Sentence Should Not Be Reconsidered Based Upon the Supreme Court’s Rulings in Johnson, Dimaya, and Davis Finally, Mr. Crews argues that reasonable jurists could

debate the application of the Supreme Court’s rulings in

Johnson, Dimaya, and Davis to his sentence, particularly

regarding whether the former residual clause of § 4B1.2(a)(2) is

void for vagueness. See Def.’s COA Mot., ECF No. 366 at 28;

Johnson, 576 U.S. at 606 (invalidating residual clause in the

ACCA, 18 U.S.C. § 924(e)(2)(B)); Dimaya, 138 S. Ct. at 1210

(invalidating residual clause in the INA, 18 U.S.C. § 16(b));

45 Davis, 139 S. Ct. at 2319 (invalidating residual clause in 18

U.S.C. § 924(c)(3)(B)). In previously rejecting this argument,

the Court determined that “Johnson, Dimaya and Davis, all of

which overturned the residual clause in federal statutes, are

easily distinguished since they involved statutes that are not

at issue in Mr. Crews’s conviction.” Mem. Op., ECF No. 360 at

68-69. The Court then distinguished the Sentencing Guidelines

from the statutes at issue in Johnson, Dimaya and Davis, noting

that “by virtue of being advisory,” the Guidelines “do not

implicate the twin concerns underlying vagueness doctrine —

providing notice and preventing arbitrary enforcement.” Id. at

69 (quoting Beckles, 137 S. Ct. at 894). So even though the

former residual clause in § 4B1.2(a)(2) was identically worded

to the ACCA’s residual clause analyzed in Johnson, the Court

noted Beckles’ holding that the Guidelines are “not void for

vagueness.” Id. (citing Beckles, 137 S. Ct. at 895).

The only new challenge Mr. Crews brings to the Court’s

conclusion is in reference to United States v. Carter, 422 F.

Supp. 3d 299 (D.D.C. 2019). See Def.’s COA Mot., ECF No. 366 at

27-28. In Carter, Judge Ellen Segal Huvelle held that the former

residual clause in § 4B1.2 of the previously mandatory

Sentencing Guidelines was void for vagueness as applied to Mr.

Carter, who was sentenced pursuant to the guidelines before they

became advisory under United States v. Booker, 543 U.S. 220, 125

46 S. Ct. 738 (2005). Carter, 422 F. Supp. 3d at 317. Mr. Crews

calls attention to Judge Huvelle’s summary of Justice

Sotomayor’s concurrence in Beckles: “Justice Sotomayor [ ] wrote

separately to explain that although she did not agree with the

Court’s holding that the advisory Guidelines were not subject to

vagueness challenges, the majority’s analysis at least left open

the question whether the residual clause in the mandatory

Guidelines was unconstitutionally vague[.]” Id. at 303-04; see

Def.’s COA Mot., ECF No. 366 at 27-28. He argues that this

commentary indicates “concern with the broad sweep of Beckles,”

such that “reasonable jurists can differ on this issue of

constitutional significance.” Def.’s COA Mot., ECF No. 366 at

28.

As the government contends, see Gov’t’s COA Opp’n Mot., ECF

No. 369 at 22; Mr. Crews’ citation to this portion of Justice

Sotomayor’s concurrence is misguided, as any reference to open

questions regarding the treatment of the residual clause in the

previously mandatory Sentencing Guidelines is inapplicable to

Mr. Crews, who was sentenced pursuant to the post-Booker

advisory guidelines regime. In her concurrence, Justice

Sotomayor referenced “the formalistic distinction between

mandatory and advisory rules” and noted the open question of

“whether defendants sentenced in terms of imprisonment before”

Booker could “mount vagueness attacks on their sentences.”

47 Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring).

Because this question does not apply to Mr. Crews, reasonable

jurists would not disagree that the advisory guidelines are not

subject to vagueness challenges, Beckles, 137 S. Ct. at 890; and

that Johnson, Dimaya, and Davis do not affect Mr. Crews’

sentence, see Mem. Op., ECF No. 360 at 69.

motion for a certificate of appealability on his sentencing

reconsideration claim. See 28 U.S.C. § 2253(c)(2).

V. Conclusion

For the foregoing reasons, Mr. Crews’ motion for

certificate of appealability, ECF No. 366, is DENIED. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 12, 2022