United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE
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).
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.
Bias's conviction, sentence, and appeal
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).
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).
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.
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.).
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).
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.
Ineffective assistance claims
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.
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
Mr. Bias's status under the ACCA
supplement to his § 2255 motion, Mr. Bias timely