IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60210

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

CURTIS CRAVEN, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 2:16-CV-91

Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Curtis Craven was given an enhanced sentence under the Armed Career 

Criminal Act (ACCA). He filed a § 2255(a) motion, which the district court 

dismissed as untimely. We granted a certificate of appealability (COA) as to 

that timeliness decision, and now reverse.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 29, 2018

Lyle W. Cayce

Clerk

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FACTS AND PROCEEDINGS

In 2008, Craven pleaded guilty to being a felon in possession of a firearm. 

In the plea agreement, Craven waived his right to appeal his conviction and 

sentence and his right “to contest the conviction and sentence or the manner 

in which the sentence was imposed in any post-conviction proceeding, 

including . . . a motion brought under Title 28, United States Code, Section 

2255.” 

The presentence report (PSR) listed Craven’s prior convictions, 

including: (1) two Florida convictions for burglary of a conveyance; (2) one 

Florida conviction for burglary; (3) one Florida conviction for possession of a 

short-barreled shotgun; (4) one Mississippi conviction for commercial burglary; 

(5) one Mississippi conviction for aggravated assault; and (6) one Mississippi 

conviction for felony taking of a motor vehicle.1 The probation office determined 

that Craven was subject to an enhanced sentence because commercial

burglary, possession of a short-barreled shotgun, aggravated assault, and 

felony taking of a motor vehicle were “violent felonies” under the ACCA.

Craven objected to the characterization of all but the aggravated assault

conviction. The district court overruled Craven’s objections and adopted the 

PSR in full. The court sentenced Craven to the ACCA mandatory minimum 

sentence of 180 months. 

Following the Supreme Court’s ruling in Johnson v. United States, 135 

S. Ct. 2551 (2015), invalidating the residual clause of 18 U.S.C.

§ 924(e)(2)(B)(ii), Craven filed a 28 U.S.C. § 2255(a) motion to vacate, set aside, 

or correct his sentence. He argued that the convictions on which the court 

 

1 Craven also had convictions for grand larceny, grand theft, dealing in stolen 

property, and accessory after the fact to armed robbery, which are not relevant to our 

decision. 

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relied for the ACCA enhancement could have qualified only under the residual 

clause, so after Johnson he should no longer be subject to an enhanced 

sentence. The government moved to dismiss that motion, contending it was 

time-barred and, alternatively, that Craven had waived his right to file it. The 

district court granted the government’s motion, dismissing Craven’s motion as 

untimely.

This court granted Craven a COA as to the following issue: “whether the 

district court erred by dismissing Craven’s § 2255 motion as time-barred based 

on its determination that Johnson did not affect the sentence under the 

ACCA.” 

DISCUSSION

“We review de novo the district court’s conclusion that [Craven’s] motion 

is untimely.” United States v. Rodriguez, 858 F.3d 960, 961 (5th Cir. 2017). A 

§ 2255 motion must be filed within a year of the latest of four qualifying events. 

28 U.S.C. § 2255(f). As relevant here, this is the latest of either “the date on 

which the judgment of conviction bec[ame] final” or “the date on which the 

right asserted was initially recognized by the Supreme Court, if that right has 

been newly recognized by the Supreme Court and made retroactively 

applicable to cases on collateral review.” Id. § 2255(f)(1), (3).

Craven contends his motion is timely under § 2255(f)(3) because it was 

filed within a year of the Supreme Court deciding Johnson. The parties do not 

dispute that Johnson recognized a new right that has been made retroactively 

applicable. See Welch v. United States, 136 S. Ct. 1257, 1268 (2016). Nor do 

they dispute that Craven filed his motion within a year of Johnson.

The district court did not analyze Craven’s motion under § 2255(f)(3). 

Nor did it address the ACCA determination made at sentencing.

The threshold question to determine the timeliness of Craven’s motion 

is whether he asserted a Johnson claim, i.e., whether he claimed that he was 

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sentenced under the ACCA’s residual clause. Craven argued in his § 2255 

motion that “he faced a mandatory minimum sentence under the residual 

clause of the ACCA.” He contends the court did not identify at sentencing on 

which clause(s) it was relying, but that the possible relevant convictions could 

not qualify as violent felonies except under the residual clause. The 

government argues that the district court did not actually rely on the residual 

clause at sentencing, so Craven’s claim cannot be based on Johnson and is 

therefore untimely.

We have not decided whether to timely file an initial § 2255 motion the 

movant need only assert a Johnson claim or whether he must also demonstrate 

that the sentencing court relied on the residual clause.2 Cf. United States v. 

Wiese, 896 F.3d 720, 724 (5th Cir. 2018) (holding that in the context of a 

successive § 2255 motion, to prove the court has jurisdiction the movant must 

show “the sentencing court relied on the residual clause in making its 

sentencing determination”). Nor have we decided—if the movant must make 

such a showing—what standard should be used to determine whether the court 

relied on the residual clause for Johnson purposes. For successive § 2255 

motions, we have noted without deciding that “the ‘more likely than not’ 

standard appears to be the more appropriate standard,” as opposed to

requiring a showing that the court “may have” relied on the residual clause. 

Id. at 724 (stating that the more demanding standard “comports with . . . the 

 

2 Compare Beeman v. United States, 871 F.3d 1215, 1219–21 (11th Cir. 2017) (finding 

timely a motion in which the defendant “claimed that when sentencing him . . . the district 

court relied on the residual clause” but denying this claim on the merits), and United States 

v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017) (holding that “in order to be timely under 

§ 2255(f)(3), a § 2255 motion need only ‘invoke’ the newly recognized right” but finding on the 

merits that the movant had been sentenced under the enumerated clause), with Dimott v. 

United States, 881 F.3d 232, 236 (1st Cir. 2018) (finding § 2255 motions untimely because 

“the record reflects that [the movants] were sentenced under the ACCA’s enumerated clause, 

not the residual clause”). 

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stringent and limited approach of AEDPA to successive habeas applications”); 

see also United States v. Taylor, 873 F.3d 476, 479–81 (5th Cir. 2017) 

(cataloguing various circuits’ standards for the jurisdictional showing on 

successive § 2255 motions). Even if Craven had to show it was more likely than 

not that the sentencing court relied on the residual clause to make his motion 

timely, he is able to do so. 

The district court did not specify at the sentencing hearing what

convictions qualified under the ACCA, or under what clause. However, the PSR 

adopted in full by the court laid out the reasoning for ACCA enhancement. See 

Wiese, 896 F.3d at 724–25 (to determine potential reliance on the residual 

clause, we look to the sentencing record, the PSR and other relevant materials 

before the district court, and the law at the time of sentencing). The PSR 

identified Craven’s Mississippi commercial burglary, possession of a shortbarreled shotgun, felony taking of a motor vehicle, and aggravated assault as 

the violent felonies that subjected him to ACCA enhancement. 

The PSR based its violent felony determinations for the possession of a 

short-barreled shotgun and car theft convictions on Eighth Circuit cases

finding those crimes to be violent felonies under the ACCA’s residual clause

and an analogous sentencing guidelines provision. See United States v. 

Vincent, 519 F.3d 732, 733 (8th Cir. 2008), vacated on other grounds, Vincent 

v. United States, 555 U.S. 1133 (2009); United States v. Walker, 494 F.3d 688, 

693 (8th Cir. 2007); United States v. Sprouse, 394 F.3d 578, 580–81 (8th Cir. 

2005). Thus, it is more likely than not that the district court relied on the 

residual clause for at least two of the four convictions used to enhance Craven’s 

sentence. At least one of these convictions was necessary to sustain the

enhancement. See 18 U.S.C. § 924(e)(1) (requiring three previous qualifying 

convictions).

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Craven asserted a Johnson claim, and it is more likely than not that he 

was sentenced under the residual clause. The district court erred in dismissing 

Craven’s § 2255 motion as time-barred. 

Whether any reliance on the residual clause is harmless because Craven 

still qualifies for enhancement is beyond the scope of the COA, as is the 

question of whether Craven waived his right to bring his motion in the first 

instance. See United States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012) (“We 

do not consider . . . issues not included in a COA.”). 

CONCLUSION

In light of the foregoing, we REVERSE the district court’s dismissal on 

timeliness grounds and REMAND for further proceedings consistent with this 

opinion.

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