United States v. Crews
| Decision Date | 12 December 2022 |
| Docket Number | Crim. Action 11-372-1 (EGS) |
| Parties | UNITED STATES OF AMERICA, v. DONNELL CREWS, Defendant. |
| Court | U.S. District Court — District of Columbia |
UNITED STATES OF AMERICA,
v.
DONNELL CREWS, Defendant.
Crim. Action No. 11-372-1 (EGS)
United States District Court, District of Columbia
December 12, 2022
MEMORANDUM OPINION
Emmet G. Sullivan, United States District Judge.
I. Introduction
Defendant Donnell Crews (“Mr. Crews” or “Defendant”) was convicted by a jury of attempted interference with commerce by robbery. See Judgment, ECF No. 266 at 1.[1]He was sentenced to 225 months of imprisonment. Id. at 2. Mr. Crews subsequently filed a motion for a new trial or for a correction in his sentence pursuant to 28 U.S.C. § 2255. See generally Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Def.'s § 2255 Mot.” or “§ 2255 Motion”), ECF No. 301.
In his § 2255 Motion, Mr. Crews made two arguments in favor of setting aside his conviction or granting a new trial. First, he argued ineffective assistance of counsel in violation of his
Sixth Amendment rights. See Def.'s § 2255 Mot., ECF No. 301 at 5-9; Def.'s Suppl. Mot. to Correct Sentence (“Def.'s Suppl. § 2255 Mot.”), ECF No. 304 at 3; Def.'s Suppl. to Mot. for New Trial (“Def.'s Add'l Suppl. § 2255 Mot.”), ECF No. 331 at 11, 19. Second, he argued that his sentence should be reconsidered based upon the Supreme Court's rulings in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551 (2015), and United States v. Davis, 139 S.Ct. 2319 (2019). See Def.'s Add'l Suppl. § 2255 Mot., ECF No. 331 at 26. The Court denied Mr. Crews' § 2255 Motion, along with the two supplemental § 2255 filings. See Mem. Op., ECF No. 360 at 2.
Mr. Crews now moves for a certificate of appealability so that he can appeal the Court's decision. See Def.'s Mot. for Certificate of Appealability (“Def.'s COA Mot.”), ECF No. 366. Upon consideration of the motion, the response, the applicable law and regulations, and the entire record and the materials cited therein, for the reasons explained below, the Court DENIES Mr. Crews' motion for a certificate of appealability.
II. Factual and Procedural Background
The Court's previous Memorandum Opinion set forth the facts of this case in detail. See United States v. Crews, No. 11-372-1 (EGS), 2021 WL 5798033, at *1-4 (D.D.C. Dec. 7, 2021). What follows is a summary of the facts and procedural history necessary to provide context for Mr. Crews' current motion.
A. Attempted Hobbs Act Robbery
On September 21, 2011, three men attempted to rob Hugh Whitaker, an employee of a cash-in-transit company, while he exited a CVS with approximately $10,000 in cash. United States v. Crews, 856 F.3d 91, 92-93 (D.C. Cir. 2017). One of the men drew a handgun and demanded the cash Mr. Whitaker was carrying. Id. at 92. In response, Mr. Whitaker drew his own handgun and the two men exchanged gunfire. Id. Mr. Whitaker retreated into the CVS uninjured, and the three men - later identified as Mr. Crews, Kirk Dean, and Anthony James - fled the scene. Id.
The police stopped Mr. Crews and Mr. James a few blocks away, and a witness identified them as being two of the men who had confronted Mr. Whitaker. Id. at 92-94. Meanwhile, a fourth individual, Antwon Crowder, who had driven the other three men to the CVS, drove the injured Mr. Dean to a hospital. Id. at 9394. Mr. Dean had sustained two gunshot wounds during the CVS gunfire exchange, but he died from a separate gunshot wound, unrelated to the attempted robbery, that he sustained in transit from the CVS to the hospital. Id. at 94.
On December 20, 2011, a grand jury charged Mr. Crews with four counts by indictment: (1) Conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951 (also known as the Hobbs Act); (2) Attempted interference with commerce by robbery and aiding and abetting in violation of 18 U.S.C. §§ 2
and 1951; (3) Using, carrying, or possessing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); and (4) Unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Indictment, ECF No. 12.
B. Trials and Sentencing
Mr. Crews and Mr. Crowder were tried jointly, and the first trial concluded with a hung jury; on August 14, 2013, the Court declared a mistrial. Crews, 856 F.3d at 93-94. Following a rescheduling, the defendants' retrial began on February 10, 2014. See Minute Entry (Jan. 10, 2014). On March 12, 2014, the jury found Mr. Crews guilty of attempted interference with commerce by robbery. Verdict Form (Crews), ECF No. 221 at 1. After Mr. Crowder decided to enter a guilty plea, the government informed the Court that it planned to dismiss the remaining counts against Mr. Crews and requested a sentencing date. See Gov't's Mot. to Order Presentence Investigation Report and Schedule Sentencing Date, ECF No. 234 at 1.
The U.S. Probation Office determined that Mr. Crews was a career offender under § 4B1.1 of the Sentencing Guidelines, based on his conviction in this case, a 2003 robbery conviction in Maryland, and a 2005 carjacking conviction in Maryland. Presentence Investigation Report (“PSI Report”), ECF No. 252 at 6-11. Accordingly, the Probation Office calculated Mr. Crews' total offense level as 32, his criminal history category as VI,
and his guidelines range as 210 to 240 months. Sentencing Recommendation (Crews), ECF No. 253 at 1. At sentencing, on December 16, 2014, Mr. Crews' counsel asserted that “either one or both of the prior convictions are not qualifying offenses such that [Mr. Crews] would now be a career offend[er].” Tr. of Sentencing Proceedings, ECF No. 315 at 7. The Court did not determine whether Mr. Crews was a career offender under the guidelines and sentenced him to 225 months of imprisonment, within the career-offender guideline range, followed by a three-year term of supervised release. Judgment, ECF No. 266 at 1.
C. Appeal to Court of Appeals for the District of Columbia Circuit
Mr. Crews, represented by new counsel, challenged two of the Court's evidentiary rulings on appeal. Crews, 856 F.3d at 93. First, Mr. Crews alleged that the Court erred by denying his motion for a mistrial based on graphic testimony by an emergency room nurse about Mr. Dean's head wound, which was unrelated to the robbery. Id. at 93-94, 96. Second, Mr. Crews claimed that the Court improperly struck the testimony of his fiancee, Vakeema Ensley, his only defense witness, after she asserted her Fifth Amendment privilege during the government's crossexamination. Id. at 93. The Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) rejected both claims and affirmed Mr. Crews' conviction on May 9, 2017. Id. at 101.
While Mr. Crews' appeal to the D.C. Circuit was pending, the Supreme Court in Johnson invalidated the “residual clause” of the Armed Career Criminal Act (the “ACCA”) as unconstitutionally vague. See Johnson, 576 U.S. at 606. At the time of Mr. Crews' sentencing in 2014, Section 4B1.2 of the federal Sentencing Guidelines - defining a “crime of violence” for purposes of determining whether a defendant is a career offender under § 4B1.1 - included a residual clause identical to the one invalidated in Johnson. See U.S.S.G. Suppl. App. C, amend. 798 (effective Aug. 1, 2016). The Sentencing Commission subsequently removed this clause from § 4B1.2's crime-of-violence definition in 2016. See id. However, in Beckles v. United States, 137 S.Ct. 886 (2017), the Supreme Court held that the Sentencing Guidelines, by virtue of being advisory rather than mandatory, are not subject to constitutional vagueness challenges and that “[t]he residual clause in § 4B1.2(a)(2) therefore is not void for vagueness[,]” id. at 892.
D. § 2255 Motion for New Trial
On May 6, 2018, Mr. Crews, pro se, filed a motion under 28 U.S.C. § 2255, asserting five grounds for relief. See Def.'s § 2255 Mot., ECF No. 301 at 5. First, Mr. Crews contended that his trial counsel was ineffective for failing to challenge his career offender classification in the PSI Report. Id. at 5. Second, he argued that his trial counsel was ineffective for
purportedly waiving his speedy trial rights without his consent during the re-trial proceedings. Id. at 6. Third, he asserted that his trial and appellate counsel were both ineffective for failing to challenge the sufficiency of evidence on his charge for using, carrying, or possessing a firearm during a crime of violence, a charge for which he was not convicted. Id. at 7-8; see also Verdict, ECF No. 221 at 1. Fourth, Mr. Crews contended that his attempted Hobbs Act robbery conviction is not a crime of violence following the decision of the Court of Appeals for the Tenth Circuit (“Tenth Circuit”) in United States v. O'Connor, 874 F.3d 1147 (10th Cir. 2017), and the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018).[2]
Id. at 9. Finally, he disputed the government's ostensible broadening of his indictment during trial, and his counsel's failure to object to the prosecution's aiding-and-abetting theory. Id. at 11.
On July 25, 2018, Mr. Crews filed a supplement to his § 2255 Motion, recognizing that his vagueness challenge to the career offender guidelines (his fourth ground in his original § 2255 Motion) “must fail” following the Supreme Court's decision in Beckles. See Def.'s Suppl. § 2255 Mot., ECF No. 304 at 1. Instead, Mr. Crews asserted a new claim of ineffective assistance of appellate counsel for failing to challenge his career offender designation on appeal.[3]See id. at 4.
On December 15, 2018, Mr. Crews filed a Motion to Appoint Counsel, ECF No. 318, which the Court granted. Minute Order (Jan. 2, 2019). On July 28, 2019, Mr. Crews' counsel filed a supplemental brief in further support of his § 2255 claims. See generally Def.'s Add'l Suppl. § 2255 Mot., ECF No. 331. Mr. Crews' second supplement included two new ineffective assistance
of trial counsel claims: (1) that trial counsel was ineffective...
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