United States District Court, W.D. Michigan, Southern Division
GORDON J. QUIST UNITED STATES DISTRICT JUDGE.
February 16, 2016, Movant, Dennis Crump, filed a Motion Under
28 U.S.C. § 2255 To Vacate, Set Aside, or Correct
Sentence By a Person in Federal Custody, seeking relief
pursuant to the United States Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
which held that the residual clause of the Armed Career
Criminal Act is unconstitutionally vague. Id. at
2563. Because Crump had previously filed a § 2255
Motion, this Court transferred the motion to the Sixth
Circuit as a second or successive § 2255 Motion. (ECF
No. 3.) On October 21, 2016, the Sixth Circuit authorized
Crump to proceed with a second or successive § 2255
Motion in light of Johnson.
Government has filed a response to Crump's § 2255
Motion, Crump has filed a reply, and the Government has filed
a notice of supplemental authority. For the reasons that
follow, the Court will deny Crump's § 2255 Motion.
April 4, 2009, Crump was charged in a three-count superseding
indictment. Count 1 charged Crump with being a felon in
possession of firearms, in violation of 18 U.S.C.
§§ 922(g)(1), 921(a), 924(a)(2), and 924(e). Count
2 charged Crump with one count of possession of cocaine with
intent to distribute, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C). Count 3 charged Crump with
possessing firearms in furtherance of drug trafficking, in
violation of 18 U.S.C. § 924(c)(1)(A)(i). Crump pled not
guilty and proceeded to trial, which began on August 25,
2009. On the second day of trial, Crump pled guilty to all
three counts of the superseding indictment.
presentence investigation report determined that Crump was an
armed career criminal under 18 U.S.C. § 924(e) because
he had one prior conviction for felonious assault, in
violation of M.C.L. § 750.82, and two prior convictions
for serious drug offenses. (Case No. 1:09-CR-73-01, PSR
¶¶ 36, 44-46.) On January 14, 2010, this Court
sentenced Crump to 220 months on Count 1, 220 months on Count
2, to run concurrently with Count 1, and 60 months on Count
3, to run consecutively with Counts 1 and 2.
Armed Career Criminal Act (ACCA) provides for a mandatory
minium sentence of 15 years imprisonment for a violation of
18 U.S.C. § 922(g) if the defendant has three prior
convictions for a “violent felony” or a
“serious drug offense” or both. 18 U.S.C. §
924(e). The ACCA contains three clauses that determine
whether a prior conviction qualified as a “violent
felony”: (1) the “elements clause”; (2) the
“enumerated offenses clause”; and (3) the
“residual clause.” United States v.
Patterson, 853 F.3d 298, 302 (6th Cir. 2017).
Johnson invalidated only the “residual
clause.” See Johnson, 135 S.Ct. at 2563
(“Today's decision does not call into question
application of the Act to the four enumerated offenses, or
the remainder of the Act's definition of violent
felony.”). Because assault is not one of the enumerated
offenses under the ACCA, whether Crump is entitled to relief
under Johnson depends on whether felonious assault
under M.C.L. § 750.82 falls within the elements clause.
Sixth Circuit's decision in United States v.
Harris, 853 F.3d 318 (6th Cir. 2017), squarely answers
the question. In Harris, the court held that
felonious assault under M.C.L. § 750.82 constitutes a
“crime of violence” under the “elements
clause” of § 4B1.2(a) of the Sentencing
Guidelines. Applying the categorical approach, the court said
that “[t]aken together, the elements [of an offense
under M.C.L. § 750.82] entail ‘the use, attempted
use, or threatened use of physical force' under the
federal Sentencing Guidelines.” Id. at 321.
The court noted that felonious assault qualifies as a crime
of violence because it proscribes not “common law
assault but common law assault with a dangerous
weapon, ” which suffices to render the offense a
“crime of violence.” Id. at 322. Because
the courts interpret the elements clause of the Sentencing
Guidelines and the elements clause of the ACCA “the
same way, ” id. at 320; see also United
States v. McMurray, 653 F.3d 367, 371 n.1 (6th Cir.
2011) (“Whether a conviction is a ‘violent
felony' under the ACCA is analyzed in the same way as
whether a conviction is a ‘crime of violence' under
the United States Sentencing Guidelines.”),
Harris controls the outcome of Crump's motion.
Johnson affords Crump no relief.
concluded that Crump is not entitled to relief under
Johnson, the Court must next determine whether a
certificate of appealability should issue under 28 U.S.C.
§ 2253(c)(2). A certificate should issue if a movant has
demonstrated a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The
Sixth Circuit has disapproved issuance of blanket denials of
certificates of appealability. Murphy v. Ohio, 263
F.3d 466, 467 (6th Cir. 2001). Rather, the district court
must “engage in a reasoned assessment of each
claim” to determine whether a certificate is warranted.
Id. at 467. Each issue must be considered under the
standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473, 120 S.Ct. 1595 (2000).
Murphy, 263 F.3d at 467.
Slack, 529 U.S. at 484, 120 S.Ct. at 1604, to
warrant a grant of the certificate, “[t]he petitioner
must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” The Court concludes that
reasonable jurists could not find this Court's conclusion
that Crump is not entitled to ...