Wednesday, December 22, 2010

Challenge to career offender status improper if basis is change in crime's legal classification

United States v. Kelley, No. 3:04-998-CMC, 2010 WL 5140593 (D.S.C. Dec. 13, 2010):

[For a previous discussion on South Carolina's blue light law, see the blog post on Thomas v. United States.]

[For a case with a similar result, see Cooper v. Warden, No. 4:10-2402-JFA-TER, 2011 WL 1113544 (D.S.C. Mar. 28, 2011).]

Defendant was sentenced as a career offender, with one of his two predicate offenses being Failure to Stop for a Blue Light ("FTSBL").  At the time of his offense and guilty plea, such an offense was considered "violent."  At sentencing, Defendant argued that FTSBL should not counted as a crime of violence, but Defendant was overruled.  In Defendant's 2255 motion, he raised an ineffective assistance of counsel argument for failure to research FSTBL and determine whether it was violent.  The Court dismissed the § 2255 motion with prejudice.

Defendant then filed a motion for Reconsideration or to Alter or Amend because he was actually innocent of being a career offender.  The Court deemed it a second or successive § 2255 and thus dismissed it.

Defendant then filed a Petition for Modification and Correction of Sentence.  He argued that because South Carolina classified FTSBL as a misdemeanor, he had been incorrectly sentenced as a career offender.  This was considered a second or successive § 2255, and it was dismissed.

Defendant then filed a Rule 60(b)(6) motion seeking to vacate his sentence on the basis of the holding in Rivers. However, a change in the law subsequent to a final judgment provides no basis for relief under Rule 60(b)(6).  This is, in reality, a second or successive § 2255 motion.

Defendant filed a motion for relief under § 2241, which is actually a § 2255 motion unless Defendant can satisfy the requirements of the savings clause in § 2255.  The fact that relief has become unavailable under § 2255 because of the prohibition against successive petitions does not demonstrate that the § 2255 remedy is inadequate or ineffective.

The Court noted that a § 2241 petition may be appropriate only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes.

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