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United States v. Craig

United States District Court, W.D. Virginia, Harrisonburg Division

April 21, 2017

UNITED STATES OF AMERICA,
v.
THOMAS ROBERT CRAIG, Petitioner.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         This matter comes before the court on the government's motion to dismiss petitioner Thomas Robert Craig's motion to vacate his federal sentence of imprisonment. ECF No. 51. On May 23, 2016, Craig filed a motion to vacate pursuant to 28 U.S.C. § 2255 challenging his sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). ECF No. 43. The court addressed the pending motions at a hearing on November 16, 2016. The court then directed the parties to file supplemental briefs regarding the status of a 1992 drug conviction in Craig's record. The parties have filed those briefs, making this matter ripe for consideration. ECF Nos. 62, 63. For the reasons set forth below, the court GRANTS the government's motion to dismiss and DENIES Craig's motion to vacate his sentence.

         I.

         On September 11, 2006, Craig pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).[1] In anticipation of Craig's sentencing, United States Probation Officer W.R. Good authored a Presentence Investigation Report ('TSR") in which he concluded that the ACCA's mandatory minimum fifteen-year sentence applied to Craig's offense. Under the ACCA, a defendant convicted of a § 922(g) offense who has committed at least three prior "violent felonies" or "serious drug offenses" is subject to the ACCA's sentence enhancement. While the PSR did not specifically identify which of Craig's prior convictions qualified as ACCA predicate offenses, the report identified twenty-nine prior convictions for drug crimes, domestic abuse, various thefts, and other offenses.

         At sentencing, Craig objected to the PSR's determination that he qualified for an enhancement under the ACCA. He argued that his 1983 conviction for burning a motor vehicle with intent to defraud, in violation of Va. Code Ann. § 18.2-81, was not an ACCA violent felony because it did not qualify as arson, which is an enumerated offense under the ACCA's definition of violent felony. 18 U.S.C. § 924(e)(2)(B)(ii). The court overruled Craig's objection and sentenced him to the mandatory minimum fifteen years in prison. On appeal, the Fourth Circuit affirmed Craig's sentence, holding that a violation of Va. Code Ann. § 18.2-81 "substantially corresponds to the generic definition of arson for the purposes of [the ACCA]." United States v. Craig, 236 F.App'x 863, 865 (4th Or. 2007).

         At sentencing and on appeal, Craig conceded that his 1982 Virginia statutory burglary conviction[2] and his 1994 New York conviction for criminal sale of a controlled substance in the third degree both qualified as ACCA predicate offenses. See Objections to PSR, ECF No. 60-2, at 2; Brief of Appellant, United States v. Craig, 2007 WL 444448 (4th Cir. filed Jan. 30, 2007). Craig now claims the shifting legal landscape over the past decade has rendered those concessions improper. Specifically, Craig argues in his § 2255 motion that Virginia statutory burglary no longer qualifies as an ACCA violent felony in light of die Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) ("Johnson H").[3] Craig also argues that his 1994 drug conviction, a Class B New York felony, no longer qualifies as a serious drug offense under the ACCA because the New York legislature has retroactively reduced the maximum penalty for that offense to nine years. See Drug Law Reform Act, 2004 NY. Laws ch. 738, § 36; 2009 NY. Laws ch. 56, pt. AAA, § 9; see also 18 U.S.C. § 924(e) (2) (A) (ii) (serious drug offenses are those that carry a minimum sentence often years or more). In short, Craig argues that his record no longer includes three ACCA predicates, and therefore, he is entitled to relief from an unlawful sentence.

         In the current proceedings, Craig again concedes that his record includes two ACCA predicate offenses: (1) a 1983 conviction for burning a motor vehicle with intent to defraud, in violation of Va. Code Ann. § 18.2-81, see Craig, 236 F.App'x at 865; and (2) a 1992 conviction for attempted criminal sale of a controlled substance in the third degree, in violation of NY Penal Law §§ 110.00, 220.39.[4] As explained below, the court concludes that his 1994 New York drug conviction continues to qualify as a serious drug offense, amounting to a third ACCA predicate offense in Craig's record. Accordingly. Johnson II does not affect Craig's status under the ACCA and his § 2255 petition must be denied.

         II.

         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Craig bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965).

         In addition to stating a claim for relief, a petition under § 2255 must adhere to strict statute of limitations requirements. Specifically, a petitioner must file a § 2255 motion within one year of the latest date on which:

(1) the judgment of conviction becomes final;
(2) the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the facts supporting the claim or claims presented could have been discovered through the ...

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