Cradler v. United States, No. 17-5046

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtDAMON J. KEITH, Circuit Judge.
Citation891 F.3d 659
Parties Larry CRADLER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Decision Date05 June 2018
Docket NumberNo. 17-5046

891 F.3d 659

Larry CRADLER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 17-5046

United States Court of Appeals, Sixth Circuit.

Argued: March 15, 2018
Decided and Filed: June 5, 2018


ARGUED: Needum L. Germany, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Needum L. Germany, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

Before: KEITH, KETHLEDGE, and THAPAR, Circuit Judges.

KEITH, J., delivered the opinion of the court in which KETHLEDGE and THAPAR, JJ., joined. KETHLEDGE, J. (p. 672), delivered a separate concurring opinion.

OPINION

DAMON J. KEITH, Circuit Judge.

Petitioner-Appellant Larry Cradler ("Cradler") was sentenced as an armed career criminal pursuant to the Armed Career Criminal Act ("ACCA"). Cradler collaterally attacked his sentence through a motion filed pursuant to 28 U.S.C. § 2255, asking the district court to vacate his sentence and re-sentence him. The district court denied Cradler's motion, and this appeal followed. For the reasons set forth below, the district court's decision is REVERSED and the case is REMANDED .

I. FACTS

In 2008, a jury convicted Cradler of violating 18 U.S.C. § 922(g)(1) (" § 922(g)(1)"), which prohibits convicted felons from possessing a firearm. This offense typically carries a maximum imprisonment penalty of 10 years. See 18 U.S.C. § 924(a)(2). However, under the ACCA, a defendant who violates § 922(g)(1) after being convicted of at least three violent felonies or serious drug offenses becomes subject to a mandatory minimum imprisonment penalty of 15 years. See 18 U.S.C. § 924(e)(1). At sentencing, the district court found that Cradler had been convicted of four violent felonies prior to violating § 922(g)(1) and, therefore, sentenced him under the ACCA, to an imprisonment term of 222 months (18.5 years). This court affirmed Cradler's judgment on September 9, 2011. Cradler did not file a petition for a

891 F.3d 664

writ of certiorari with the U.S. Supreme Court.

On May 8, 2014, Cradler, through counsel, filed a motion under 28 U.S.C. § 2255 to vacate his sentence (" § 2255 motion"). Cradler argued that, in light of the U.S. Supreme Court's decision in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), two of his prior convictions—(1) sexual battery and (2) third-degree burglary—no longer qualified as violent felonies for ACCA purposes. Therefore, Cradler asserted that his record no longer contained the three violent felonies necessary to subject him to the ACCA's mandatory minimum imprisonment penalty. Based on this, Cradler concluded that his sentence was in excess of the maximum authorized by law, entitling him to a vacating of his sentence and a remand for appropriate re-sentencing, pursuant to 28 U.S.C. § 2255.

Over the following 31 months, Cradler's § 2255 motion was litigated at length in the district court. The protracted nature of the litigation was due, in part, to the publishing of two Supreme Court cases during that time— Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) —which Cradler used to update, revise, and at times replace, his original arguments. During this time, the United States conceded that it lacked the requisite information to support the argument that Cradler's sexual battery conviction qualifies as a violent felony for ACCA purposes. Since that time, this dispute has involved only Cradler's third-degree burglary conviction.

On December 29, 2016, the district court denied Cradler's § 2255 motion on the merits, concluding that his third-degree burglary conviction qualifies as a violent felony. The district court also denied Cradler's motion to proceed in forma pauperis, and declined to issue a certificate of appealability. On July 11, 2017, this court granted Cradler's motions for a certificate of appealability and to proceed in forma pauperis. This appeal followed.

On appeal, Cradler argues that the district court erred in denying his § 2255 motion because it misapplied the proper procedure for determining if a prior conviction qualifies as a violent felony. The United States argues that Cradler's § 2255 motion was properly denied, for three reasons: (1) the motion is untimely; (2) Cradler procedurally defaulted his claim; and (3) the district court properly determined that Cradler's third-degree burglary offense qualifies as a violent felony.

II. STANDARD OF REVIEW

"In reviewing a district court's denial of a motion under Section 2255, we apply a clearly erroneous standard to its factual findings and review its conclusions of law de novo ." Braden v. United States , 817 F.3d 926, 929 (6th Cir. 2016) (quoting Hyatt v. United States , 207 F.3d 831, 832 (6th Cir. 2000) ). "This court reviews de novo a district court's determination regarding whether a prior conviction constitutes a ‘violent felony’ under the ACCA." Id. at 930 (quoting United States v. Kemmerling , 612 Fed.Appx. 373, 375 (6th Cir. 2015) ).

III. SECTION 2255 MOTIONS, TIMELINESS, AND DEFAULT

Under 28 U.S.C. § 2255, a federal prisoner may move the court to vacate, set aside, or correct his sentence if the sentence "was imposed in violation of the Constitution or laws of the United States, or ... the sentence was in excess of the

891 F.3d 665

maximum authorized by law...." 28 U.S.C. § 2255(a). "If the court finds that ... the sentence imposed was not authorized by law ... the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id . at § 2255(b).

A. One-Year Limitations Period

The United States' first argument against Cradler's § 2255 motion is that the motion is untimely. Motions under § 2255 are subject to a one-year period of limitation. Normally, this period runs from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). When, as here, the U.S. Court of Appeals affirmed a criminal judgment, but the defendant did not file a petition for a writ of certiorari with the Supreme Court, his judgment is deemed to be final when the time for filing such a petition expired (i.e., 90 days after the U.S. Court of Appeals entered judgment). Clay v. United States , 537 U.S. 522, 525, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). Because we affirmed Cradler's judgment of conviction on September 9, 2011, his judgment became final in December 2011. Cradler filed his § 2255 motion in May 2014, well after the one-year period of limitation had expired.

However, subsection (f)(3) of § 2255 gives federal prisoners a second chance to attack their sentences, but only under special circumstances. Subsection (f)(3) can restart the one-year period of limitation only if the U.S. Supreme Court (1) announces a "newly recognized" right that affects the prisoner's conviction and/or sentence, and (2) makes that new right retroactive to cases on collateral review. See 28 U.S.C. § 2255(f)(3). In such cases, the one-year limitation period restarts on "the date on which the right asserted [in the § 2255 motion] was initially recognized by the Supreme Court." Id .

Throughout the pendency of his § 2255 motion, Cradler argued that the motion was timely under (f)(3) based on three different Supreme Court cases: first Descamps , then Johnson , and lastly Mathis . The United States argues that none of these cases allows Cradler to successfully assert timeliness under (f)(3). However, before this court can consider the United States' timeliness defense, it is important to note that the United States did not raise this defense in the district court—instead, it was first raised in the United States' brief on appeal. When a party fails to preserve a defense by neglecting to raise it in the district court, that defense is usually deemed to have been forfeited. Wood v. Milyard , 566 U.S. 463, 470 n.4, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012).1 Such is the case here.

B. Effect of the Forfeited Timeliness Defense

"[A]ppellate courts ordinarily abstain from entertaining issues that have not been raised and preserved in the court of first instance." Id . at 473, 132 S.Ct. 1826. We are reluctant to "allow a party to withhold raising a defense until after the ‘main event’—in this case, the proceeding in the District Court—is over."

891 F.3d 666

Granberry v. Greer , 481 U.S. 129, 132, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987).

Nevertheless, out of concern for "judicial efficiency and conservation of judicial resources," appellate courts are not absolutely barred from considering a forfeited timeliness defense in a 2255 case. Wood , 566 U.S. at 472-73, 132 S.Ct. 1826 (quoting Day v. McDonough , 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) ). "[C]ourts of appeals ......

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52 practice notes
  • Greer v. United States, No. 16-4755
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 12, 2019
    ...out that our forfeiture rule is not inflexible, and that we have the power to excuse its forfeiture here. See Cradler v. United States , 891 F.3d 659, 666 (6th Cir. 2018). But we typically do so only in "exceptional cases," and the government offers no compelling reasons to justify departin......
  • United States v. Reed, No. 20-5631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 1, 2021
    ...case" warranting an excusal of the forfeiture, the government has forfeited the argument on appeal. Cradler v. United States , 891 F.3d 659, 666 (6th Cir. 2018).In finding that forfeiture does not apply to this argument, the majority cites to case law "recogniz[ing] a distinction between fa......
  • United States v. Scott, No. 18-163-cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 2, 2021
    ...categorical approach, is pushing us into a catechism of inquiry that renders these approaches ludicrous."); Cradler v. United States , 891 F.3d 659, 672 (6th Cir. 2018) (Kethledge, J. , concurring) ("Whatever the merits of [the categorical] approach, accuracy and judicial efficiency are not......
  • Snider v. United States, No. 16-6607
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 9, 2018
    ...of counsel." We also appointed counsel.II. Legal conclusions in a habeas corpus petition are reviewed de novo. Cradler v. United States , 891 F.3d 659, 664 (6th Cir. 2018).Snider argues that we should vacate the district court’s order denying his § 2255 motion because the district court rel......
  • Request a trial to view additional results
52 cases
  • Greer v. United States, No. 16-4755
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 12, 2019
    ...out that our forfeiture rule is not inflexible, and that we have the power to excuse its forfeiture here. See Cradler v. United States , 891 F.3d 659, 666 (6th Cir. 2018). But we typically do so only in "exceptional cases," and the government offers no compelling reasons to justify departin......
  • United States v. Reed, No. 20-5631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 1, 2021
    ...case" warranting an excusal of the forfeiture, the government has forfeited the argument on appeal. Cradler v. United States , 891 F.3d 659, 666 (6th Cir. 2018).In finding that forfeiture does not apply to this argument, the majority cites to case law "recogniz[ing] a distinction between fa......
  • United States v. Scott, No. 18-163-cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 2, 2021
    ...categorical approach, is pushing us into a catechism of inquiry that renders these approaches ludicrous."); Cradler v. United States , 891 F.3d 659, 672 (6th Cir. 2018) (Kethledge, J. , concurring) ("Whatever the merits of [the categorical] approach, accuracy and judicial efficiency are not......
  • Snider v. United States, No. 16-6607
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 9, 2018
    ...of counsel." We also appointed counsel.II. Legal conclusions in a habeas corpus petition are reviewed de novo. Cradler v. United States , 891 F.3d 659, 664 (6th Cir. 2018).Snider argues that we should vacate the district court’s order denying his § 2255 motion because the district court rel......
  • Request a trial to view additional results

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