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United States v. Bias

United States District Court, N.D. Oklahoma

August 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LETHAN CRAIG BIAS, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE

         Before the Court is the motion of defendant, Lethan Craig Bias, under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Doc. 62). Initially, Mr. Bias premised his motion on claims of ineffective assistance of counsel in plea negotiations and at sentencing. (Id., Grounds One and Two). He subsequently filed motions to supplement or amend. (See Doc. 65, 66, 67). In his first and second supplements filed on May 18 and June 10, 2016, Mr. Bias asserted that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) directly impacts his Armed Career Criminal Act (ACCA) designation and sentence. Because his requests to supplement to raise Johnson issues were filed within one year of the Johnson decision, the Court entered an order construing those filings as amendments and supplements to his § 2255 motion. (Doc. 68).

         Mr. Bias filed a third supplement on July 18, 2016, asserting that, pursuant to Mathis v. United States, 136 S.Ct. 2243 (2016), certain of his convictions “no longer qualify” as predicate offenses under the ACCA. With respect to Mr. Bias's assertion of issues under Mathis, the Court stated that, “[a]t this time, and without ruling on the timeliness of the presentation of his arguments under Mathis (which the Supreme Court indicated was decided under its existing precedents), the Court will construe the [third] request to be an amendment and supplement to his Motion.” (Doc. 68). The Court directed the government to respond, and authorized Mr. Bias to file a reply brief. (Id.). The Federal Public Defender's Office was appointed to assist with the motion under § 2255.

         I. Mr. Bias's conviction, sentence, and appeal

         A grand jury indicted Mr. Bias in 2013 for possessing a firearm and ammunition after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). (Doc. 15). The indictment identified five prior felony convictions, including burglaries in Texas, Arkansas, and Oklahoma, and a kidnapping. Attorney Jeffrey McGrew was appointed to represent Mr. Bias. Bias decided to change his plea to guilty pursuant to a plea agreement. At the change of plea hearing, the Court noted that the plea agreement indicated that Mr. Bias waived his right to directly appeal his conviction and sentence, while his plea petition provided that he was reserving the right to appeal sentencing issues. (See 7/19/13 Tr., Doc. 45 at 8-9). Counsel noted that there remained a disagreement as to whether the defendant should be sentenced under the ACCA. (Id. at 10).

         The parties agreed to change the plea agreement to permit Mr. Bias to reserve his rights to appeal sentencing issues. (Id. at 13). Mr. Bias admitted that he had been convicted of the crimes alleged in the indictment. (Id. at 19-20). Bias confirmed that he wished to challenge the application of the ACCA's mandatory minimum 15-year sentence based on the prior convictions, which he said were not violent offenses. (Id. at 20). He then pleaded guilty to possessing firearms after felony convictions. (Id. at 37-38).

         The probation office's presentence investigation report concluded that Mr. Bias had three prior burglary convictions for violent felonies, as then defined under the ACCA, 18 U.S.C. § 924(e), and it classified him as an armed career criminal, which raised his statutory maximum sentence from ten years under 18 U.S.C. § 924(a)(2) to a maximum of life imprisonment and a statutory minimum of fifteen years' imprisonment under § 924(e). The three offenses that were utilized were (1) burglary of a building, second degree, under Texas law; (2) burglary in Arkansas; and (3) second degree burglary in Oklahoma. The PSI also noted a kidnapping conviction as part of the Oklahoma conviction.

         Before sentencing, Mr. Bias's counsel submitted a sentencing memorandum, asserting Mr. Bias's argument that his prior burglary convictions did not qualify as violent crimes. (Doc. 32). Bias also submitted a letter arguing that his prior offenses were not violent and that he should not be sentenced as an armed career criminal. (See Doc. 29). At sentencing, Mr. Bias's counsel requested that the Court find that at least one of the burglary convictions could not serve as predicates under the ACCA, and he requested that Mr. Bias be permitted to make a statement about his burglary convictions. (12/11/13 Tr., Doc. 46 at 4-5). Bias then explained his position that all of his prior convictions were not violent in nature, and he expressly refused to “acknowledge that the charges for burglary . . . [were] violent.” (Id. at 9). Bias's counsel argued that the Oklahoma second degree burglary statute included types of burglary, including burglary of a vending machine, that “would fall outside armed career criminal.” (Id. at 10-11). In response, based on review of underlying documents relating to that conviction, the Court responded, “But we know that it wasn't a burglary of a vending machine, and we know it was a burglary in the second degree of a home.” (Id. at 11). The Court made clear that it examined at least the information, judgment and sentence as to the Oklahoma conviction. (See id.).

         At sentencing, the Court noted that burglary is an enumerated offense under the ACCA and indicated that Bias's burglary offenses fit within the generic definition of burglary in Taylor v. United States, 495 U.S. 575, 600-601 (1990), as “an unlawful or unprivileged entry into or remaining, in a building or other structure, with intent to commit a crime.” (Id. at 20-22). Bias was sentenced to the ACCA's mandatory minimum of fifteen years. (Doc. 37).

         Mr. Bias appealed. The Tenth Circuit dismissed his appeal, concluding that this Court had properly considered the three burglaries to qualify as violent felonies under the ACCA. (Doc. 55).

         II. Ineffective assistance claims

         The government argues that Mr. Bias's § 2255 motion was untimely with respect to his claims of ineffective assistance of counsel in plea negotiations and sentencing, because he did not file his motion within the one-year time limitation provided in 28 U.S.C. § 2255(f). “For the purpose of starting the clock on § 2255's one-year limitation period, . . . a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.” Clay v. United States, 537 U.S. 522, 525, (2003); see also Id. at 532; United States v. McKenzie, 803 F.3d 1164, 1165 (10th Cir. 2015). Mr. Bias has not responded to the timeliness argument as to the ineffective assistance claims.

         The Tenth Circuit dismissed Mr. Bias's appeal on June 30, 2014. The 90-day period for filing a certiorari petition expired on September 29, 2014, and the statute of limitations for his § 2255 motion expired one year later, on September 29, 2015. He did not file his motion until October 23, 2015, 24 days after the expiration of the deadline under § 2255(f). The Court also agrees with the government's alternative argument that Mr. McGrew did not render ineffective assistance of counsel as Mr. Bias has alleged. He is thus not entitled to relief on his ineffective assistance claims.

         III. Mr. Bias's status under the ACCA

         A. The residual clause

         By supplement to his § 2255 motion, Mr. Bias timely ...


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