United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE
a motion to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255, filed by petitioner Derrick Craig
(“Craig”). (Doc. 1.) The Government has responded
in opposition to the motion (doc. 8) and Craig has filed a
reply brief in support of the motion (doc. 9). For the
following reasons, the motion is due to be denied and this
action dismissed with prejudice.
August 29, 2011, Craig pled guilty to one count of Hobbs Act
robbery, in violation of 18 U.S.C. § 1951, and one count
of brandishing a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c). As part of his written
plea agreement, Craig waived his right to appeal his
conviction and sentence and to seek post-conviction
collateral relief to challenge his sentence.
January 25, 2012, this Court sentenced Craig to a total of
346 months' imprisonment: 240 months for the Hobbs Act
robbery conviction and 106 months for the brandishing a
firearm count, each to run consecutively with the other.
Judgment was entered on January 27, 2012.
than a year later, Craig filed a pro se notice of
appeal on June 26, 2013, alleging ineffective assistance of
counsel with regard to his defense counsel's calculation
of the U.S. Sentencing Guidelines. The Eleventh Circuit
appointed counsel for Craig on direct appeal. On July 8,
2014, the Eleventh Circuit granted the Government's
motion to dismiss Craig's appeal as untimely, but stated
that it expressed no opinion as to what determination the
district court should make if presented with a § 2255
motion alleging ineffective assistance of counsel with regard
to the calculation of the guidelines.
the same appointed direct appeal counsel, and prior to the
dismissal of the direct appeal, Craig filed a § 2255
motion in this Court on June 3, 2014. The Government filed a
response on October 29, 2014, waiving any procedural bars and
agreeing with Craig's position that he should be
resentenced. On November 10, 2014, this Court granted
Craig's § 2255 motion, vacating his sentence in
United States v. Craig, 2:11-cr-00013-LSC-HGD-4.
December 2014, a resentencing hearing was held and this Court
resentenced Craig to 262 months' imprisonment-178 months
for the Hobbs Act robbery and 84 months for the § 924(c)
charge, both to run consecutively to the other. Judgment was
entered on December 16, 2014.
September 17, 2015, Craig filed the instant § 2255
motion pro se. He makes three interrelated
arguments. He contends that the counsel who was appointed for
him on direct appeal and who also represented him during his
first § 2255 proceedings before this Court, including at
his resentencing hearing, was ineffective for failing to
argue the applicability of Rosemond v. United
States, 134 S.Ct. 1240 (decided on March 5, 2014), to
his § 924(c) conviction at his resentencing hearing in
December 2014. Craig also argues that he did not enter into
his 2011 guilty plea knowingly and voluntarily because the
Rosemond case invalidated it and that he is
“actually innocent” of the § 924(c)
conviction by claiming that “[t]here is no evidence in
the record establishing that Craig knew beforehand that a gun
would be used” in the robbery.
Craig's § 2255 Motion is Timely Filed
Government argues that Craig's motion should be dismissed
as untimely-filed pursuant to 28 U.S.C. § 2255(f)(1)
because it was not filed within one year of the original
judgment of conviction and sentence becoming final, or by
February 2013. The Government is wrong because when Craig was
resentenced in December 2014, the one-year statute of
limitations for filing a § 2255 motion started again.
See Ferreira v. Sec., Dept. of Corrs., 494 F.3d
1286, 1292-93 (11th Cir. 2007) (holding that when a
petitioner is resentenced after the Antiterrorism and
Effective Death Penalty Act of 1996's
(“AEDPA's”) one-year statute of limitations
has expired for the original judgment of conviction and
sentence, the judgment entered upon resentencing constitutes
a new judgment holding the petitioner in confinement, and
that new judgment resets the statute of limitations clock and
a petitioner may challenge both the underlying conviction and
the resentencing). While Ferreira concerned a §
2254 petition, a § 2255 motion should be governed
similarly. The one-year for filing a § 2255 motion
commences, among other things, from “the date on which
the judgment of conviction becomes final.” 28 U.S.C.
§ 2255(f)(1). The federal “judgment of
conviction” should mean the same thing as a
“judgment of a State court, ” that is, “the
underlying conviction and most recent sentence that
authorizes the petitioner's current detention.”
Ferreira, 494 F.3d at 1292. Accordingly, because
Craig filed the instant § 2255 motion within one year of
judgment being entered upon resentencing, his motion is
timely. See 28 U.S.C. § 2255(f)(1).
Craig's Appeal ...