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Craig v. United States

United States District Court, N.D. Alabama, Southern Division

October 6, 2017

DERRICK CRAIG, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is 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.

         II. Background

         On 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.

         On 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.

         More 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.

         Through 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.

         In 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.

         On 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.

         III. Discussion

         A. Craig's § 2255 Motion is Timely Filed

         The 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).

         B. Craig's Appeal ...


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