1

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UNITED STATES OF AMERICA, 

 

v. 

DONNELL CREWS, 

 Defendant. 

Crim. Action No. 11-372-1 (EGS) 

MEMORANDUM OPINION

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 

1 When citing electronic filings throughout this Memorandum 

Opinion, the Court cites to the ECF header page number, not the 

original page number of the filed document. 
2

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. 
3

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 93-

94. 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 
4

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, 
5

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 threeyear 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 fiancée, 

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.
6

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-ofviolence 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 
7

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

2 In denying Mr. Crews’ § 2255 Motion, the Court construed Mr. 

Crews’ claim regarding O’Connor and Dimaya not as challenging 

the elements of his conviction but rather as asserting that his 

conviction in this case is “not a crime of violence after these 

rulings.” Def.’s § 2255 Mot., ECF No. 301 at 8. Since the 

underlying logic of these cases is distinct from each other, the 

Court considered them separately. Compare O’Connor, 874 F. 3d at 

1158 (holding that Hobbs Act robbery did not qualify as a crime 

of violence under the 2016 Sentencing Guidelines), with Dimaya, 

138 S. Ct. at 1210 (invalidating the residual clause in the 

Immigration and Nationality Act (the “INA”), 18 U.S.C. § 16(b)). 

The Court considered whether Hobbs Act robbery is a crime of 

violence within its analysis of whether Mr. Crews’ counsel was 

ineffective for not challenging his career offender 

classification. See Mem. Op., ECF No. 360 at 38–52. The Court 

considered Mr. Crews’ claim regarding Dimaya alongside his 

argument that his sentence should be reconsidered following 

Johnson v. United States, 576 U.S. 591, 606, 135 S. Ct. 2551 

(2015), (invalidating the residual clause in the ACCA), and 

United States v. Davis, 139 S. Ct. 2319, 2551 (2019) 

(invalidating the residual clause in 18 U.S.C. § 924(c)(3)(B)). 

See Mem. Op., ECF No. 360 at 67–69. 
8

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 

3 In its Memorandum Opinion denying Mr. Crews’ § 2255 Motion, the 

Court treated this claim as replacing Mr. Crews’ first ground in 

his earlier claim that his trial counsel was ineffective for 

failing to challenge his career offender classification in the 

PSI Report. The record establishes that trial counsel preserved 

an objection to the career offender classification for appeal, 

arguing “that either one or both of the prior convictions are 

not qualifying offenses such that he would now be a career 

offend[er].” Tr. of Sentencing Proceedings, ECF No. 315 at 7.
9

of trial counsel claims: (1) that trial counsel was ineffective 

for failing to request that the Court narrow its ruling striking 

the entire testimony of Ms. Ensley; and (2) that trial counsel 

was ineffective for not retaining experts in the fields of DNA 

testing and DNA interpretation. Id. at 11, 19. Mr. Crews also 

asked the Court to reconsider his sentence based upon the 

Supreme Court’s decisions in Johnson v. United States, 576 U.S. 

591, 135 S. Ct. 2551 (2015), and United States v. Davis, 139 S. 

Ct. 2319 (2019). Id. at 26. 

The Court denied Mr. Crews’ § 2255 Motion and its 

accompanying two supplements on December 7, 2021. See Mem. Op., 

ECF No. 360 at 71. The Court found that Mr. Crews did not 

receive ineffective assistance of trial or appellate counsel for 

any of his timely claims, id. at 36-38; and it determined that 

the two additional ineffective trial counsel claims raised in 

the second supplemental brief were untimely because they did not 

relate back to Mr. Crews’ timely filed § 2255 Motion, id. at 29-

34. The Court further found that equitable tolling was not 

warranted, as any hardships Mr. Crews had referenced did not 

rise to “extraordinary circumstances” preventing timely filing. 

Id. at 34-36. Finally, the Court held that the Supreme Court’s 

decisions in Johnson, Dimaya, and Davis did not impact Mr. 

Crews’ sentence, as they did not involve residual clauses in 

federal statutes applicable to his conviction. Id. at 68-69. 
10

Subsequent to the Court’s issuance of its Order and 

accompanying Memorandum Opinion, see ECF No. 359-60; Mr. Crews

timely filed a notice of appeal to the D.C. Circuit, see ECF No. 

361; and the D.C. Circuit referred to this Court the 

determination of whether a certificate of appealability is 

warranted, see ECF No. 363. On April 24, 2022, Mr. Crews filed 

the present motion for a certificate of appealability. See

generally Def.’s COA Mot., ECF No. 366. On July 5, 2022, the 

government filed its opposition. See generally United States’

Opp’n to Def.’s Mot. for Certificate of Appealability (“Gov’t’s 

COA Opp’n Mot.”), ECF No. 369. Mr. Crews has not filed a reply, 

but his motion is ripe and ready for adjudication.

III. Legal Standard

A certificate of appealability must be issued for an 

appellate court to hear an appeal from a “final order in a 

proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). The 

federal district court judge who rendered the judgment for which 

appellate review is sought must either issue the certificate of 

appealability or explain why it should not be issued. Fed. R. 

App. P. 22(b)(1). Where a court denies a habeas claim on 

procedural grounds, a certificate of appealability “should issue 

when the prisoner shows, at least, that jurists of reason would 

find it debatable whether the petition states a valid claim of 

the denial of a constitutional right and that jurists of reason 
11

would find it debatable whether the district court was correct 

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 

(2000). As for whether an application states a valid claim of 

the denial of a constitutional right, a certificate of 

appealability may issue “only if the petitioner has made a 

substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). To make this showing, the petitioner “need 

not show that he should prevail on the merits. . . . Rather, he 

must demonstrate that the issues are debatable among jurists of 

reason; that a court could resolve the issues [in a different 

manner]; or that the questions are adequate to deserve 

encouragement to proceed further.” United States v. Mitchell, 

216 F.3d 1126, 1130 (D.C. Cir. 2000) (quoting Barefoot v. 

Estelle, 463 U.S. 880, 893 n.4 (1983)).

If the court issues the certificate of appealability, it 

must specify which issues satisfy the substantial showing 

requirement. Mitchell, 216 F.3d at 1130. If a district court 

judge denies a request for a certificate of appealability, a 

petitioner may request one from the circuit court judge. Fed. R. 

App. P. 22(b)(1).

IV. Analysis

Mr. Crews seeks to appeal the Court’s denial of four of the 

claims brought in his § 2255 Motion and accompanying 

supplements: (1) his ineffective assistance of counsel claim 
12

that his trial attorney failed to request that the Court narrow 

its ruling striking the full testimony of Ms. Ensley; (2) his 

ineffective assistance of counsel claim that his trial attorney

failed to retain experts in the fields of DNA testing and 

interpretation in his defense; (3) his ineffective assistance of 

counsel claim that his appellate attorney failed to challenge 

his career offender designation on appeal with the argument that 

attempted Hobbs Act robbery did not qualify as a “crime of 

violence” under § 4B1.2 of the Sentencing Guidelines at the time 

of his sentencing; and (4) his argument that the Court should 

reconsider his sentence pursuant to the Supreme Court’s 

decisions in Johnson, Dimaya, and Davis. See Def.’s COA Mot., 

ECF No. 366 at 6-28. 

Since the Court denied the first two § 2255 claims on 

procedural grounds, it first discusses its procedural rulings on 

these two claims in relation to the present motion, before 

addressing its substantive rulings pertaining to the merits of 

Mr. Crews’ latter two claims.

A. Reasonable Jurists Would Not Debate that Mr. Crews’ 

Ineffective Assistance of Trial Counsel Claims Raised 

in His Second Supplement Are Procedurally Time-Barred

Mr. Crews argues that reasonable jurists could debate 

whether the two ineffective assistance of trial counsel claims 

raised in his second § 2255 supplement — pertaining to the 

Court’s striking of Ms. Ensley’s testimony and the lack of DNA 
13

experts retained in Mr. Crews’ defense — should be considered 

timely, or alternatively, deemed eligible for equitable tolling. 

See Def.’s COA Mot., ECF No. 366 at 6-17. First, Mr. Crews 

argues, as he did in his second § 2255 supplement, that he 

timely alleged that his trial counsel was ineffective in raising

the issue of Ms. Ensley’s testimony, albeit “in the incorrect 

portion of the [original] form pro se motion.” Def.’s COA Mot., 

ECF No. 366 at 6; see also Def.’s § 2255 Mot., ECF No. 301 at 2.

He contends, as he did before, that “[a] liberal construction of 

[his] pro se Motion to Vacate should be construed in favor of 

allowing [his] claim[,]” given courts’ tendency to apply less 

stringent standards to pro se pleadings. See Def.’s COA Mot., 

ECF No. 366 at 9 (citing Webb v. United States Veterans 

Initiative, 993 F.3d 970, 972 (D.C. Cir. 2021)).

A defendant generally must file a motion for relief under §

2255 within a year of “the date on which the facts supporting 

the claim or claims presented could have been discovered through 

the exercise of due diligence.” 28 U.S.C. § 2255(f)(4). As the 

Court discussed in its Memorandum Opinion, Mr. Crews’ judgment 

became final on August 7, 2017, and his deadline to file for §

2255 relief expired one year later, on August 7, 2018. Mem. Op., 

ECF No. 360 at 30. While Mr. Crews’ original pro se motion and 

his first supplemental motion were timely filed on May 1, 2018 

and July 25, 2018, respectively, Mr. Crews’ second supplement, 
14

submitted almost a year after his filing deadline on July 28, 

2019 and raising the claim related to Ms. Ensley’s testimony, 

was not timely. Id. at 30-31. This determination is not a 

debatable ruling. 

Additionally, reasonable jurists would not debate whether 

Mr. Crews’ improper placement of the Ms. Ensley issue in his pro 

se motion warrants liberally construing the claim as timely 

filed. In this motion, Mr. Crews again points to part 9(f) of 

his pro se § 2255 filing, summarizing the “Grounds Raised” on 

his appeal to the D.C. Circuit, as the timely source for his 

second supplemental claim regarding Ms. Ensley’s testimony, see

Def.’s COA Mot, ECF No. 366 at 9; even though this claim is not 

also reiterated in the section for the five enumerated grounds 

for his § 2255 Motion, see Def.’s § 2255 Mot., ECF No. 301 at 2, 

4-10. Even acknowledging Mr. Crews’ continued argument that pro 

se filings are “to be liberally construed,” Def.’s COA Mot., ECF 

No. 366 at 8; the Court is unpersuaded that conflating the 

grounds for direct appeal and the grounds for collateral attack 

in the § 2255 motion form is sufficient in a reasonable jurist’s 

mind to permit such liberal construction in favor of a 

timeliness finding, see Mem. Op., ECF No. 360 at 33 (reaching 

the same conclusion, since “Mr. Crews [did] not mention Ms. 

Ensley’s testimony anywhere under the five grounds for his §

2255 motion”).
15

In the alternative, Mr. Crews argues that even if the Court 

continues to deem this supplemental claim untimely, reasonable 

jurists could differ as to whether “the misplacement of the 

issue related to Ms. Ensley’s testimony” is sufficient to 

entitle him to equitable tolling that would excuse the late 

filing. Def.’s COA Mot., ECF No. 366 at 12.

The doctrine of equitable tolling applies to the filing of 

§ 2255 motions. United States v. McDade, 699 F.3d 499, 504 (D.C. 

Cir. 2012) (citing Holland v. Florida, 560 U.S. 631 (2010)). A

petitioner is “entitled to equitable tolling only if he shows:

(1) that he has been pursuing his rights diligently, and (2) 

that some extraordinary circumstance stood in his way and 

prevented timely filing.” Id. (citation and internal quotation 

marks omitted). “The diligence required for equitable tolling 

purposes is ‘reasonable diligence.’” Holland, 560 U.S. at 653. 

The district court’s task is to consider the facts of the case 

“to determine whether they indeed constitute extraordinary 

circumstances sufficient to warrant equitable relief.” Id. at 

653-54. Equitable tolling for habeas petitioners is decided “on

a case-by-case basis,” id. at 650; and “is to be employed only 

sparingly” and where “extraordinary circumstances beyond a 

prisoner’s control make it impossible to file a petition on 

time,” United States v. Cicero, 214 F.3d 199, 203 (D.C. Cir. 

2000) (citations and internal quotation marks omitted). “To 
16

count as sufficiently ‘extraordinary,’ . . . ‘the circumstances 

that caused a litigant’s delay must have been beyond [his] 

control’; in other words, the delay ‘cannot be a product of that 

litigant’s own misunderstanding of the law or tactical mistakes 

in litigation.’” Head v. Wilson, 792 F.3d 102, 107 (D.C. Cir. 

2015) (quoting Menominee Indian Tribe of Wis. v. United States, 

764 F.3d 51, 58 (D.C. Cir. 2014)). 

Yet, contrary to the standard that the delay “cannot be a 

product of [a] litigant’s own misunderstanding of the law,” id.;

this is the very argument Mr. Crews makes, asserting he should 

be entitled to equitable tolling even though his ineffective 

assistance claim regarding Ms. Ensley’s testimony “was entered 

by [him] in the wrong box in the form” and was “a clerical error 

in the placement of the issue[,]” Def.’s COA Mot., ECF No. 366

at 9, 12. While the Court acknowledged that Mr. Crews has shown 

some diligence in pursuing his rights, see Mem. Op., ECF No. 360 

at 35; he raises no new “extraordinary circumstances” that made 

it impossible for him to supplement his § 2255 Motion on time, 

and jurists of reason have rejected the idea that “pro se

representation alone or procedural ignorance” can rise to “rare 

and exceptional” circumstances meriting equitable tolling, see

Johnson v. United States, 544 U.S. 295, 311, 125 S. Ct. 1571

(2005); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); 

Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006).
17

Mr. Crews next argues that the ineffective assistance of 

counsel claim in his second supplement about his trial 

attorney’s failure to retain a DNA expert relates back to his 

originally filed § 2255 Motion and should be deemed timely. See

Def.’s COA Mot., ECF No. 366 at 12-17. He contends that since he 

raised ineffective assistance of counsel claims “in general 

terms in the pro se motion,” the “specific added instance of 

ineffectiveness” pertaining to his trial counsel’s “failure to 

retain a DNA expert to challenge the government’s expert” arises 

from “precisely the same common core of operative facts” and 

thus relates back to his original § 2255 filing. Id. at 16-17. 

The government responds that “[r]easonable jurists would not 

debate the correctness of [the] Court’s ruling that raising one 

allegation of ineffective assistance of counsel does not suffice 

to preserve all others.” Gov’t’s COA Opp’n Mot., ECF No. 369 at 

13. The Court agrees and reiterates its prior determination that 

this supplemental ineffective assistance of trial counsel claim 

does not debatably relate back to those claims raised in Mr. 

Crews’ timely filings. See Mem. Op., ECF No. 360 at 33-34.

Claims filed beyond § 2255’s one-year limitation period are 

timely if they relate back to the timely claims, meaning that 

they “arise from the same core facts as the timely filed claims, 

and not [if] the new claims depend upon events separate in ‘both 

time and type’ from the originally raised episodes.” Mayle v. 
18

Felix, 545 U.S. 644, 645, 125 S. Ct. 2562 (2005). The Federal 

Rules of Civil Procedure establish that “[a]n amendment to a 

pleading relates back to the date of the original pleading when” 

the claim asserted in the amended pleading “arose out of the 

conduct, transaction, or occurrence set out — or attempted to be 

set out — in the original pleading[.]” Fed. R. Civ. P. 15(c)(1). 

Courts have rejected the contention that timely alleging 

one ineffective assistance of counsel claim gives the petitioner 

unlimited leeway to file untimely amendments raising some other 

type of ineffective assistance claim based upon distinct 

conduct. See, e.g., Schneider v. McDaniel, 674 F.3d 1144, 1151-

52 (9th Cir. 2012) (allowing any general ineffective assistance 

of counsel claim to support “the relation back of any and every” 

such claim “would stand the Supreme Court’s decision in Mayle on 

its head”); United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 

2005) (negating the satisfaction of Rule 15’s “relation back” 

standard “merely by raising some type of ineffective assistance 

in the original petition, and then amending [it] to assert 

another ineffective assistance claim based upon an entirely 

distinct type of attorney misfeasance”); Davenport v. United 

States, 217 F.3d 1341, 1346 (11th Cir. 2000) (same conclusion 

regarding untimely ineffective assistance of counsel claims that 

“arose from separate conduct and occurrences in both time and 

type” from the original claims); United States v. Palmer, 902 F. 
19

Supp. 2d 1, 15 (D.D.C. 2012) (same conclusion, as allowing 

different factual theories “linked only by a common generalized 

legal theory to a timely claim would undermine [the 

Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”)]’s goal of finality in convictions”).

Because Mr. Crews’ ineffective assistance claim related to 

his trial counsel’s failure to retain a DNA expert in his 

defense is based on occurrences “totally separate and distinct, 

in both time and type” from those raised in his timely § 2255 

filings, reasonable jurists could not debate whether this claim 

is timely based on Rule 15’s relation back test. United States 

v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002) (internal quotation 

marks omitted).4

Since the Court finds that reasonable jurists could not 

debate whether the Court was correct in its procedural rulings

as to the two claims in Mr. Crews’ second supplemental briefing, 

4 The parties proffer differing views of McClain v. LeGrand, No. 

3:14-cv-00269, 2019 WL 1646393 (D. Nev. Apr. 16, 2019). Compare

Def.’s COA Mot., ECF No. 366 at 15-17, with Gov’t’s COA Opp’n 

Mot., ECF No. 369 at 12-13. The McClain court determined that an 

amended claim related back to an original claim as to the denial 

of effective assistance of counsel when both claims were united 

by facts pertaining to counsel’s failure to advise the defendant 

that he could file a direct appeal and failed to file an appeal 

on his behalf. McClain, 2019 WL 1646393, at *3. The factual 

circumstances thus stemmed from the same “core of operative 

facts.” Id. The Court reads McClain only to support its 

conclusion, as there are no facts in Mr. Crews’ timely § 2255 

claims that relate to his counsel’s actions (or lack thereof) as 

to the use of DNA experts at his trial.
20

it need not reach the issue of whether Mr. Crews’ motion states 

a valid claim of the denial of a constitutional right as to 

those two claims. Slack, 529 U.S. at 484. Therefore, the Court 

DENIES Mr. Crews’ motion for a certificate of appealability on 

his ineffective assistance of trial counsel claims in his second 

supplement.

B. Reasonable Jurists Would Not Debate that Mr. Crews’ 

Appellate Counsel Was Not Ineffective for Not

Challenging His Sentencing as a Career Offender

Mr. Crews reiterates the ineffective assistance of counsel

claim made in his first § 2255 supplement related to his 

appellate counsel’s failure to challenge his career offender 

sentencing designation on appeal. See Def.’s COA Mot., ECF No. 

366 at 26; Def.’s Suppl. § 2255 Mot., ECF No. 304 at 4. He 

argues that because “newly appointed appellate counsel did not 

raise the issue related to the career offender status[,]” which 

his “trial counsel raised and preserved an objection to” on the 

record, there is a “significant legal claim related to [his] 

Sixth Amendment right to effective assistance of appellate 

counsel.” Def.’s COA Mot., ECF No. 366 at 22, 26. At the time of 

Mr. Crews’ sentencing in 2014, to be a career offender, a 

defendant had to have at least two prior felony convictions of 

either a crime of violence or a controlled-substance offense. 

U.S.S.G. § 4B1.1(a) (2014). A “crime of violence” was defined as 

follows:
21

(a) The term “crime of violence” means any 

offense under federal or state law, punishable 

by imprisonment for a term exceeding one year, 

that –

(1) has as an element the use, attempted use, 

or threatened use of physical force against 

the person of another, or

(2) is burglary of a dwelling, arson, or 

extortion, involves use of explosives, or 

otherwise involves conduct that presents a 

serious potential risk of physical injury to 

another.

Id. § 4B1.2(a). Subsection (a)(1) is referred to as the 

“elements” or “force” clause; the non-italicized portion of 

subsection (2) is the “enumerated offense” clause; and the 

italicized text is the “residual” clause. See United States v. 

Carr, 314 F. Supp. 3d 272, 274 n.1 (D.D.C. 2018).

Because Mr. Crews’ ineffective assistance of appellate 

counsel claim was timely raised in his first supplement, the 

Court addressed the substantive merits of this Sixth Amendment 

claim in ruling on his § 2255 Motion, first determining whether 

attempted Hobbs Act robbery qualified as a crime of violence at 

the time of Mr. Crews’ sentencing under the enumerated offense 

and residual clauses of § 4B1.2(a) of the Sentencing Guidelines.5

See Mem. Op., ECF No. 360 at 40-52. After answering in the 

5 Because the government conceded that “Hobbs Act robbery may be 

committed by using force against property (and not just force 

against a person)” and is “broader than the elements-clause 

definition of a crime of violence[,]” the Court did not address 

whether attempted Hobbs Act robbery qualified as a crime of 

violence under that clause. See Mem. Op., ECF No. 360 at 40.
22

affirmative for both clauses, the Court determined that Mr. 

Crews’ ineffective assistance of appellate counsel claim failed 

because “each of [his] three convictions meets the requirements 

for a ‘crime of violence’ under § 4B1.2(a)[.]”6 Id. at 40.

Claims of ineffective assistance of counsel are governed by 

the standard set forth in Strickland v. Washington, 466 U.S. 

668, 104 S. Ct. 2052 (1984). To succeed, a defendant must show 

both deficient performance by his attorney and prejudice. 

Strickland, 466 U.S. at 687. Strickland requires a party 

claiming ineffective assistance of trial counsel to show that: 

(1) “counsel’s representation fell below an objective standard 

of reasonableness . . . [measured] under prevailing professional 

norms[,]” (the performance prong); and (2) the “deficiencies in 

counsel’s performance . . . [were] prejudicial to the defense” 

6 The Court also addressed whether Mr. Crews’ prior convictions —

a 2003 robbery conviction in Maryland and a 2005 carjacking 

conviction in Maryland — qualified as crimes of violence under 

the 2014 Sentencing Guidelines. See Mem. Op., ECF No. 360 at 52-

64. It determined that the robbery conviction was a crime of 

violence under the residual clause of § 4B1.2(a), see id. at 52-

58; and that the carjacking conviction was a crime of violence 

under the elements and residual clauses of § 4B1.2(a), see id.

at 58-64. In the present motion, Mr. Crews does not challenge 

the Court’s classification of these two convictions as crimes of 

violence, instead focusing on his attempted Hobbs Act robbery 

conviction. See Def.’s COA Mot., ECF No. 366 at 18-22. The Court 

thus only addresses Mr. Crews’ ineffective assistance of 

appellate counsel claim in relation to whether it is debatable 

that attempted Hobbs Act robbery qualified as a crime of 

violence for purposes of Mr. Crews’ career offender designation 

at the time of sentencing.
23

(the prejudice prong). Id. at 688, 692. To establish deficient 

performance, the moving party must show “specific errors made by 

trial counsel.” United States v. Cronic, 466 U.S. 648, 666, 104 

S. Ct. 2039 (1984). To establish prejudice, the moving party 

must demonstrate “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 694. 

“Judicial scrutiny of counsel’s performance must be highly 

deferential[,]” and the defendant must overcome “a strong 

presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance.” Id. at 689.

The standard for evaluating claims of ineffective 

assistance of appellate counsel is the same as that for 

evaluating claims of ineffective assistance of trial counsel. 

See Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746 (2000); 

United States v. Agramonte, 366 F. Supp. 2d 83, 86 (D.D.C. 

2005). “[A]ppellate counsel who files a merits brief need not 

(and should not) raise every nonfrivolous claim, but rather may 

select from among them in order to maximize the likelihood of 

success on appeal.” Robbins, 528 U.S. at 288; see also 

Agramonte, 366 F. Supp. 2d at 86-87 (“It is settled that a 

criminal defendant has no constitutional right to have appellate 

counsel raise every nonfrivolous issue that the defendant 

requests.”). Although it is “possible to bring a Strickland
24

claim based on counsel’s failure to raise a particular claim” on 

appeal, “it is difficult to demonstrate that counsel was 

incompetent” on that ground. Robbins, 528 U.S. at 288.

To succeed on his claim of ineffective assistance of 

appellate counsel, Mr. Crews must establish “a reasonable 

probability” that attempted Hobbs Act robbery did not qualify as 

a crime of violence under any of the three available definitions 

in § 4B1.2(a) of the 2014 Guidelines: (1) the “elements” or 

“force” clause;7 (2) the “enumerated offense” clause;8 or (3) the 

“residual” clause.9 See Strickland, 466 U.S. at 694. In assessing 

7 Under the elements clause, the Court looks “to the elements of 

the crime to determine whether, by its terms, commission of the 

crime inherently (i.e., categorically) requires the kind of 

force” that is contemplated in § 4B1.2(a). United States v. 

Brown, 892 F.3d 385, 402 (D.C. Cir. 2018).

8 The inquiry under the enumerated offense clause compares the 

elements of the conviction with the elements of any potentially 

applicable § 4B1.2(a)(2) enumerated offenses to see if they 

match. See Mathis v. United States, 579 U.S. 500, 505-06, 136 S. 

Ct. 2243 (2016). If the Guidelines do not supply a definition of 

the enumerated offense, the Court determines the generic 

definition by considering “a wide range of sources . . . , 

including federal and state statutes, the Model Penal Code, 

dictionaries, and treatises.” United States v. O’Connor, 874 

F.3d 1147, 1151 (10th Cir. 2017). If the scope of conduct 

covered by the defendant’s crime of conviction is broader than 

what the enumerated offense definition would cover, the crime of 

violence sentencing enhancement is not valid under the 

enumerated offense clause. See United States v. Titties, 852 

F.3d 1257, 1265-66 (10th Cir. 2017).

9 The inquiry under the residual clause remains categorical, 

considering “whether the elements of the offense are of the type 

that would justify its inclusion within the residual provision, 

without inquiring into the specific conduct of th[e] particular 

offender.” James v. United States, 550 U.S. 192, 202, 127 S. Ct. 

1586 (2007).
25

whether an offense is a crime of violence, courts use a 

“categorical approach,” focusing on “how the law defines the 

offense” and not on how “an individual offender might have 

committed it on a particular occasion.” United States v. Haight, 

892 F.3d 1271, 1279 (D.C. Cir. 2018) (quoting Begay v. United 

States, 553 U.S. 137, 141, 128 S. Ct. 1581 (2008)). If the 

statute on which the conviction was based defines the offense in 

a way that includes, at its margins, conduct beyond what the 

guidelines contemplate as a crime of violence, the offense is 

not categorically a crime of violence. See id. In other words, 

the question is whether “the least of th[e] acts criminalized . 

. . are encompassed by the generic federal offense.” United 

States v. Carr, 946 F.3d 598, 601 (D.C. Cir. 2020) (citing 

Moncrieffe v. Holder, 569 U.S. 184, 191, 135 S. Ct. 1678 (2013) 

(internal quotation marks omitted)). 

1. Reasonable Jurists Would Not Debate that 

Attempted Hobbs Act Robbery Qualified as a 

“Crime of Violence” Under § 4B1.2(a) of the 

Sentencing Guidelines at the Time Mr. Crews Was 

Sentenced 

Mr. Crews contends that “a certificate of appealability 

should issue related to the Hobbs Act, residual clause claims, 

and career offender claims.” Def.’s COA Mot., ECF No. 366 at 22. 

He argues that reasonable jurists could debate whether attempted 

Hobbs Act robbery qualifies as a crime of violence because of an 

amendment to the Sentencing Guidelines that occurred after his 
26

sentencing, which he claims should “be applied retroactively.”

Id. at 20. The government notes that Mr. Crews never specifies 

which amendment he is referring to, though is presumably correct 

in identifying U.S.S.G. Suppl. App. C, amend. 798 (effective 

Aug. 1, 2016) (“Amendment 798” or “U.S.S.G. Amend. 798”) as the 

amendment in question. See Gov’t’s COA Opp’n Mot., ECF No. 369

at 14. Mr. Crews contends that a retroactive application of 

Amendment 798, supported by the Tenth Circuit’s 2017 decision in 

O’Connor10 and the Supreme Court’s 2016 decision in Welch v. 

United States, 578 U.S. 120, 136 S. Ct. 1257 (2016),11 could lead 

“reasonable jurists [to] have differing opinions concerning the 

application of the guidelines to a particular group of 

offenses[,]” i.e., the Guidelines’ present crime-of-violence 

definition applied to Mr. Crews’ attempted Hobbs Act robbery

conviction. Def.’s COA Mot., ECF No. 366 at 21-22. 

The government responds that “[j]urists of reason would not 

find it debatable whether [Mr. Crews’] argument states a valid 

claim of the denial of a constitutional right” because he 

10 See supra note 2 (discussing O’Connor’s holding that Hobbs Act 

robbery is not a crime of violence under the 2016 Guidelines). 

11 In Welch, the Supreme Court held — pursuant to the framework 

of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989) “for 

determining whether a new rule applies to cases on collateral 

review” — that its prior decision in Johnson v. United States to 

invalidate the ACCA’s residual clause as unconstitutionally 

vague was a substantive decision with retroactive effect. Welch 

v. United States, 578 U.S. 120, 128-30, 136 S. Ct. 1257 (2016).
27

“conflates not only” decisions applying the ACCA with those 

applying § 4B1.2(a), “but also the enumerated-offense and 

residual clauses of § 4B1.2(a)(2).” Gov’t’s COA Opp’n Mot., ECF 

No. 369 at 14. The government contends that Welch “has [no] 

bearing on whether Amendment 798 applies retroactively[,]” as it 

utilized the Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 

(1989) framework for assessing the retroactive effect of new 

rules of criminal procedure, which is inapplicable to 

determining the retroactive effect of amendments to the 

Guidelines. See id. at 14-16. The government also argues that 

O’Connor does not aid Mr. Crews’ argument for retroactivity, as 

the Tenth Circuit did not: (1) apply Amendment 798’s definition 

of “extortion” retroactively under the enumerated offense 

clause; or (2) consider whether attempted Hobbs Act robbery was 

a crime of violence under § 4B1.2(a)(2)’s former residual 

clause, which the government argues leads Mr. Crews to “ma[k]e 

the requisite showing as to neither [clause].” Id. at 16-18.

a. Reasonable Jurists Would Not Debate that 

Amendment 798 to the Sentencing Guidelines, 

Enacted After Mr. Crews Was Sentenced, Does 

Not Apply to Him Retroactively

Courts generally must use the Sentencing Guidelines in 

effect at the time of sentencing. United States v. Green, 952 

F.2d 414, 416 (D.C. Cir. 1991); United States v. Smaw, 22 F.3d 

330, 333 (D.C. Cir. 1994) (noting the Sentencing Commission’s 

directive to courts to “use the Guidelines Manual in effect on 
28

the date that the defendant is sentenced” except in “specified 

exceptional cases”) (citing U.S.S.G. § 1B1.11(a)). However, the 

Supreme Court has determined “that the policy statement in § 

1B1.10 of the Sentencing Guidelines governs whether changes to 

the Guidelines may be given retroactive effect.” United States 

v. Williams, 495 F. App’x 96, 97 (D.C. Cir. 2013) (citing Dillon 

v. United States, 560 U.S. 817, 827, 130 S. Ct. 817 (2010)). One 

retroactive circumstance is when an amendment to the Guidelines 

is deemed a “clarification” as opposed to a “substantive 

alteration.” Smaw, 22 F.3d at 333. A clarifying amendment 

“changes nothing concerning the legal effect of the guidelines, 

but merely clarifies what the Commission deems the guidelines to 

have already meant[,]” and is therefore applied retroactively, 

while a substantive change is not. Id.; accord United States v. 

Bankston, 901 F.3d 1100, 1104 (9th Cir. 2018). 

In distinguishing between clarifying and substantive 

amendments, courts may look to whether the amendment is listed 

in § 1B1.10(d) of the Guidelines, which lists amendments the 

Sentencing Commission intended to apply retroactively. See

U.S.S.G. § 1B1.10(d); see also United v. Amaya-Ortiz, 296 F. 

Supp. 3d 21, 25-26 (D.D.C. 2017) (declining to apply an 

amendment retroactively because the Commission did not designate 

it as one eligible for retroactive effect). A court may also 

consider whether the Commission “characterized the amendment as 
29

a clarification” and “whether the amendment resolves a circuit 

conflict,” both of which tip in favor of a clarifying amendment 

as opposed to a substantive change. See Bankston, 901 F.3d at 

1104; United States v. Ynfante, 78 F.3d 677, 682 n.4 (D.C. Cir. 

1996) (considering whether the Commission described an amendment 

as a “mere clarification”).

The Sentencing Commission made two changes to the 

Guidelines in Amendment 798 relevant to Mr. Crews’ arguments. 

First, following the Supreme Court’s decision in Johnson

striking the ACCA’s residual clause, the Commission removed § 

4B1.2(a)(2)’s identical residual clause. See U.S.S.G. Amend. 798

(determining that the residual clause “implicates many of the 

same concerns cited by the Supreme Court in Johnson, and, as a 

matter of policy, amend[ing] § 4B1.2(a)(2) to strike the 

clause”). Second, the Commission provided a definition for the 

term “extortion” in the Guidelines’ crime-of-violence 

definition, later used in O’Connor’s crime-of-violence analysis 

of Hobbs Act robbery under the enumerated offense clause. Id.; 

O’Connor, 874 F.3d at 1150. Under Amendment 798, “extortion” is 

defined as “obtaining something of value from another by the 

wrongful use of (A) force, (B) fear of physical injury, or (C) 

threat of physical injury.” U.S.S.G. Amend. 798. O’Connor

referred to this definition as “Guidelines extortion” to 

“distinguish it from the ‘generic extortion’ definition courts 
30

used before Amendment 798.” O’Connor, 874 F.3d at 1150; cf. 

United States v. Moore, 149 F. Supp. 3d 177, 181 (D.D.C. 2016) 

(stating that “[t]he Supreme Court has indicated that the 

generic definition of extortion is obtaining something of value 

from another with his consent induced by the wrongful use of 

force, fear, or threats”) (citation and internal quotation marks 

omitted). The Commission’s purpose in supplying this extortion 

definition in the amendment was to “narrow[] the generic 

definition of extortion by limiting the offense to those having 

any element of force or an element of fear or threats ‘of 

physical injury,’ as opposed to non-violent threats such as 

injury to reputation.” U.S.S.G. Amend. 798.

While the D.C. Circuit has yet to consider whether 

Amendment 798 is a clarifying or substantive change, the Court 

concludes, based on persuasive authority, that reasonable 

jurists would not debate that Amendment 798 is a substantive 

change that does not apply retroactively. First, it is not 

listed in § 1B1.10(d) of the Guidelines as an amendment that the 

Commission intended to have retroactive effect. See U.S.S.G. §

1B1.10(d); see also United States v. Adkins, 883 F.3d 1207, 1212 

(9th Cir. 2018) (noting that the Commission “has not used its 

delegated authority to make Amendment 798 retroactive, as [it] 

has done for a list of other amendments”). Second, Amendment 798 

describes the above changes using the following verbs: (1) 
31

“[r]emoving the residual clause” and “strik[ing]” it, and (2)

“narrow[ing] the generic definition of extortion by limiting the 

offense.” U.S.S.G. Amend. 798. The actions of “removing” or 

“striking” a clause and “narrowing” or “limiting” an offense are 

not descriptions of clarifications but instead are substantive 

alterations changing the legal effect of the Guidelines and are 

therefore not applied retroactively. See Bankston, 901 F.3d at 

1105 (concluding that “[t]he Commission’s language thus reflects 

a substantive change . . . not a clarifying one”); Smaw, 22 F.3d 

at 333.12 Moreover, nowhere in Amendment 798 did the Commission 

“specify that it was resolving a circuit split in making the 

change.” Adkins, 883 F.3d at 1212; Bankston, 901 F.3d at 1104. 

Instead, Amendment 798 entails the wholesale elimination of a 

clause and the provision of an entirely new definition, which 

“bespeak[] . . . substantive alteration” rather than 

clarification. Smaw, 22 F.3d at 333.

Mr. Crews’ reliance on the Supreme Court’s decisions in 

Welch and Johnson to argue for the retroactivity of Amendment 

798 is therefore misguided. See Def.’s COA Mot., ECF No. 366 at 

21. Not only was a different statute at issue in those cases 

(the ACCA), see Mem. Op., ECF No. 360 at 68-69; but also in 

12 Mr. Crews’ argument that retroactivity should apply “[w]hen a 

revision reduces the Guidelines range for a given offense” is 

not encompassing of Amendment 798’s actual revisions that are at 

issue here. See Def.’s COA Mot., ECF No. 366 at 20.
32

Welch, the Supreme Court was analyzing Johnson’s new 

constitutional rule of criminal procedure under Teague, not an 

amendment to the Sentencing Guidelines, which is evaluated under 

its own retroactivity framework. See Welch, 578 U.S. at 128-29.

As Welch noted, Teague creates a “general bar on retroactivity 

for procedural rules[,]” only recognizing retroactivity for 

“[n]ew substantive rules” and “new ‘watershed rules of criminal 

procedure’ . . . ‘implicating fundamental fairness and accuracy 

of the criminal proceeding[.]’” Id. at 128. In contrast, the 

test for the retroactivity of amendments to the Guidelines is 

nearly the reverse, where it is not substantive but clarifying 

amendments that are given retroactive effect. See Smaw, 22 F.3d 

at 333; Amaya-Ortiz, 296 F. Supp. 3d at 25-26.

To support its conclusion that reasonable jurists would not 

debate that Amendment 798 is not retroactive, below the Court 

explains why it is not debatable that: 1) the amendment’s 

deletion of the residual clause in § 4B1.2(a)(2) is not 

retroactive; and 2) the amendment’s extortion definition, 

impacting the analysis of Hobbs Act robbery under the enumerated 

offense clause, is also not retroactive. Mr. Crews appears to 

mix his arguments regarding these two clauses together. See

Def.’s COA Mot., ECF No. 366 at 18-22. Since “[n]othing 

prohibits an amendment from being clarifying in part and 

substantive in part[,]” United States v. Jackson, 901 F.3d 706, 
33

709 (6th Cir. 2018); the Court, for the reasons below, concludes 

that reasonable jurists could not debate whether Mr. Crews has 

shown “a reasonable probability” that either change would apply 

retroactively so as to result in his attempted Hobbs Act robbery 

conviction not qualifying as a crime of violence under the 2014 

Sentencing Guidelines, Strickland, 466 U.S. at 694.

First, regarding § 4B1.2(a)(2)’s former residual clause

that existed at the time of Mr. Crews’ sentencing, no court to 

analyze the issue has retroactively applied the deletion of the 

clause so as to negate a prior crime-of-violence determination

during sentencing. See, e.g., Adkins, 883 F.3d at 1211 (holding

that the deletion of § 4B1.2(a)’s residual clause does not have 

retroactive effect); Jackson, 901 F.3d at 710 (finding that the 

“deletion of the residual clause amount[ed] to a substantive 

change” by “making a new, clearer law” thus “leaving untouched 

our prior decision that Jackson’s attempted robbery conviction 

counts as a crime of violence”); United States v. Gonzalez, 714 

F. App’x 367, 370-71 (5th Cir. 2017) (finding that Amendment 

798’s deletion of the residual clause “has none of the 

characteristics of a change that, according to our case law, is 

retroactive rather than substantive and thus prospective” and 

holding the district court did not err in not considering the 

amendment); United States v. Craig, 706 F. App’x 545, 550-51 

(11th Cir. 2017) (classifying Amendment 798’s elimination of the 
34

residual clause a “substantive, rather than clarifying” change 

and rejecting consideration of it on appeal); United States v. 

Raymonde, 858 F. App’x 263, 265-66 (10th Cir. 2021) (finding it 

not “reasonably debatable that the district court violated 

Raymonde’s due process rights when it relied on the residual 

clause in identifying a second qualifying crime of violence[,]” 

since Amendment 798 is “not entitled to retroactive benefit”); 

United States v. Wurie, 867 F.3d 28, 37 (1st Cir. 2017) 

(refusing to remand for resentencing given that Amendment 798’s 

elimination of the residual clause was a “non-retroactive 

substantive amendment[] to the Guidelines” post-dating the 

defendant’s sentencing).13

Contrary to Mr. Crews’ reliance on Welch, several of these 

courts have found Welch to be “persuasive evidence that removal 

of the residual clause is a substantive change to the Sentencing 

Guidelines, not a clarifying one[,]” as Welch held that “Johnson

changed the substantive reach of the [ACCA by] altering the 

13 In United States v. Frates, 896 F.3d 93 (1st Cir. 2018), the 

First Circuit remanded to allow reconsideration of the 

defendant’s career offender status following the removal of the 

residual clause but only because Amendment 798 was enacted while

the defendant’s appeal was pending. Id. at 102. The court 

acknowledged this “quirk” for defendants who were sentenced 

pursuant to § 4B1.2(a)’s residual clause prior to the existence 

of Amendment 798 and whose appeals were pending when the 

amendment took effect. Id. at 97. This “quirk” is not the case 

for Mr. Crews, who was sentenced in 2014, long before Amendment 

798 took effect on August 1, 2016.
35

range of conduct or the class of persons that the [Act] 

punishes.” Adkins, 883 F.3d at 1213 (quoting Welch, 578 U.S. at 

129) (internal quotation marks omitted). And since Johnson

altered the ACCA by eliminating “the identically-worded residual 

clause” to that in § 4B1.2(a)(2), it follows that Amendment 798 

“changed the ‘substantive reach’ of the Sentencing Guidelines,” 

thus prohibiting any retroactive effect. Id.; see also Jackson, 

901 F.3d at 710 (same conclusion). Therefore, reasonable jurists 

could not debate that attempted Hobbs Act robbery qualified as a 

crime of violence under the then-existing residual clause of § 

4B1.2(a)(2) at the time Mr. Crews was sentenced.14 See United 

14 As the government notes, see Gov’t’s COA Opp’n Mot., ECF No. 

369 at 15; Courts of Appeal in several circuits have concluded 

that the Supreme Court’s decision in Beckles v. United States, 

137 S. Ct. 886, foreclosed the possibility of retroactively 

extending Johnson’s holding to the former residual clause in § 

4B1.2(a), see, e.g., United States v. Adkins, 883 F.3d 1207, 

1213 (9th Cir. 2018) (“Beckles settled that Johnson does not 

apply to the Sentencing Guidelines.”); United States v. Wurie, 

867 F.3d 28, 33 (1st Cir. 2017) (“[T]he Supreme Court clarified 

in Beckles that Johnson [] does not apply to section 4B1.2(a) of 

the Guidelines[.]”); Atkinson v. United States, No. 17-1421,

2017 WL 8793327, at *1-2 (6th Cir. Oct. 23, 2017) (discussing 

the defendant’s concession that “Beckles foreclosed his Johnson

claim” as applied to his career-offender designation under the 

Guidelines); Delgado v. United States, 725 F. App’x 914, 916 

(11th Cir. 2018) (noting Beckles’ conclusion that “the holding 

in Johnson did not extend to the ‘residual’ clause formerly in 

U.S.S.G. § 4B1.2(a)”); United States v. Thyberg, 684 F. App’x 

733, 736 (10th Cir. 2017) (“Since [the defendant] filed his 

[certificate of appealability] application, the Supreme Court 

held [in Beckles that] Johnson does not apply to the Sentencing 

Guidelines, including § 4B1.2(a)(2).”). Mr. Crews does not 

proffer arguments concerning the effect of Beckles on any 
36

States v. Eason, 953 F.3d 1184, 1195 (11th Cir. 2020) (noting 

that prior to Amendment 798 in 2016, “[t]he residual clause 

easily encompassed offenses like Hobbs Act robbery”).

Second, no court to analyze the issue has retroactively 

applied Amendment 798’s added definition of extortion to negate 

a prior crime-of-violence determination under the enumeration 

clause of § 4B1.2(a)(2). For example, the Court of Appeals for 

the Ninth Circuit has held that “Amendment 798’s alteration of 

the definition of extortion in the Guidelines’ ‘crime of 

violence’ section is not retroactive.” See Bankston, 901 F.3d at 

1105 (“Because Bankston was sentenced before August 1, 2016, the 

pre-amendment generic extortion definition applies[.]”). 

Contrary to Mr. Crews’ arguments, O’Connor supports the

position that the Guidelines’ 2016 definition of extortion, or 

“Guidelines extortion,” does not apply retroactively. In 

O’Connor, the Tenth Circuit explained that “[t]he Guidelines 

were amended in 2016 to include a definition of extortion that 

is narrower than the [previously utilized] generic definition,” 

and held that pursuant to this new definition, Hobbs Act robbery 

is not a crime of violence under the enumerated clause of § 

4B1.2(a) because “it is broader than both generic robbery and 

Guidelines extortion, which are limited to threats to a person.”

retroactive effect of Amendment 798, so the Court does not 

discuss this topic further.
37

874 F.3d at 1152-53. In reaching this conclusion, the Tenth 

Circuit found that the Guidelines’ 2016 definition of extortion 

is “ambiguous” and applied the rule of lenity to resolve the 

ambiguity in Mr. O’Connor’s favor as “excluding injury and 

threats of injury to property.” Id. at 1157-58. 

While the Tenth Circuit vacated Mr. O’Connor’s sentence and 

remanded for resentencing in light of its holding, of particular 

significance is the fact that Mr. O’Connor was sentenced on 

October 4, 2016, a little over two months after Amendment 798 

took effect on August 1, 2016. See Brief of Appellee at 2,

United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017) (No. 

16-3300). Therefore, O’Connor does not support allowing the 

retroactive application of Guidelines extortion to negate the

prior crime-of-violence designation that occurred in Mr. Crews’ 

sentencing in 2014 pursuant to the generic definition of 

extortion applicable at the time. Mr. Crews himself admits that 

“[t]he standard in O’Conn[o]r was added by the Sentencing 

Commission two years after [he] was sentenced[,]” Def.’s COA 

Mot., ECF No. 366 at 21; and he has proffered no caselaw to 

support reasonable jurists debating that O’Connor could be 

applied retroactively to defendants sentenced prior to August 1, 

2016, see generally id. The Court thus stands by its prior 

determination that “O’Connor can be distinguished since the 

standard in place at the time Mr. Crews was convicted included 
38

threats to property” and its holding that “generic extortion, at 

the time of Mr. Crews’ sentencing, covered any Hobbs Act robbery 

offense not encompassed by the elements clause.” See Mem. Op., 

ECF No. 360 at 44 (emphasis added).15

b. Reasonable Jurists Would Not Debate that the 

“Crime of Violence” Definition Under § 

4B1.2(a) of the Sentencing Guidelines at the 

Time Mr. Crews Was Sentenced Included 

Attempted Hobbs Act Robbery

The parties also dispute whether a certificate of 

appealability should issue related to Mr. Crews’ ineffective 

assistance of appellate counsel claim as to the Court’s

15 In further support of the Court’s determination that O’Connor

did not apply Amendment 798’s definition of “extortion” 

retroactively under the enumerated offense clause are several 

other cases prospectively applying this change in definition 

following the amendment’s August 1, 2016 effective date. See, 

e.g., United States v. Green, 996 F.3d 176, 182-84 (4th Cir. 

2021) (using, for a defendant sentenced in 2019, the Guidelines’ 

2016 definition of extortion to hold “like five other circuits 

before us,” that Hobbs Act robbery is “not a crime of violence 

under the career offender provision of the Sentencing 

Guidelines” because “it extends to a broader range of conduct . 

. . than § 4B1.2(a)(1)’s force clause or the offenses of robbery 

and extortion enumerated in § 4B1.2(a)(2)”); United States v. 

Camp, 903 F.3d 594, 604 (6th Cir. 2018) (“[W]e join the Tenth 

Circuit in holding [for a defendant sentenced in 2017] that 

Hobbs Act robbery is not a crime of violence under the 

Guidelines” because it “criminalizes conduct that extends beyond 

both generic robbery and Guidelines extortion[.]”); United 

States v. Rodriguez, 770 F. App’x 18, 23 (3d Cir. 2019) (same 

for a defendant also sentenced in 2017); United States v. Eason, 

953 F.3d 1184, 1194-95 (11th Cir. 2020) (same for a defendant 

sentenced on August 5, 2016); Bridges v. United States, 991 F.3d 

793, 802-03 (7th Cir. 2021) (same for a defendant sentenced in 

2018); United States v. Edling, 895 F.3d 1153, 1157-58 (9th Cir. 

2018) (same for a defendant sentenced in October 2016 pursuant 

to Nevada’s robbery statute).
39

conclusion that “attempted Hobbs Act [r]obbery[, like completed 

Hobbs Act robbery,] satisfies the enumerated offense clause” of 

§ 4B1.2(a). See Mem. Op., ECF No. 360 at 44-45; Def.’s COA Mot., 

ECF No. 366 at 24-26; Gov’t’s COA Opp’n Mot., ECF No. 369 at 18-

21.

Mr. Crews relies on the D.C. Circuit’s decisions in United 

States v. Price, 990 F.2d 1367 (D.C. Cir. 1993) and United 

States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) to argue that

his conviction for “‘attempted’ interference with commerce by 

robbery[,] . . . coupled with [his] trial counsel’s specific 

objection to [his] career offender status unquestionably should 

have put appellate counsel on notice to brief a significant 

legal issue that was specifically raised in the trial court.” 

Def.’s COA Mot., ECF No. 366 at 24. In Price, the court held 

that the Sentencing Commission exceeded its authority under 18 

U.S.C. § 994(h) by including conspiracies to commit controlled 

substance offenses in Application Note 1 to § 4B1.2,16 i.e.,

allowing such conspiracies to factor into the career offender 

designation analysis was improper when § 994(h) “plainly 

fail[ed] to reach” them. 990 F.2d at 1368, 1370. Mr. Crews 

argues that the same logic should be taken from conspiracies to 

16 At the time of Price, Application Note 1 to § 4B1.2 stated 

that controlled substance offenses included “the offenses of 

aiding and abetting, conspiring, and attempting to commit such 

offenses.” Price, 990 F.2d at 1368 (emphasis in the original).
40

commit controlled substance crimes and applied to attempt 

offenses qualifying as crimes of violence, such that his 

appellate counsel should have been on notice to brief the legal 

issue. See Def.’s COA Mot., ECF No. 366 at 24-25. 

Mr. Crews also relies on one line in Winstead, in which the 

court held that the commentary to the career offender guidelines 

impermissibly expanded the definition of a “controlled substance 

offense” to include attempts to commit such offenses (otherwise 

known as inchoate offenses), 890 F.3d at 1091-92;17 to contend 

that his appellate counsel should have argued on appeal that § 

4B1.2 does not include attempted crimes of violence, see Def.’s

COA Mot., ECF No. 366 at 24 n.2 (quoting Winstead that the 

Commission’s “drafters declined to include attempt despite its 

presence elsewhere”). The government responds that neither Price

nor Winstead supports Mr. Crews’ arguments, and the Court 

agrees, standing by its original conclusion that its decision 

“is not altered by the fact that Mr. Crews was convicted of 

attempted Hobbs Act [r]obbery.” Mem. Op., ECF No. 360 at 44.

17 Winstead analyzed whether the commentary to § 4B1.2, stating 

that a controlled substance offense “include[s] the offenses of 

aiding and abetting, conspiring, and attempting to commit such 

offenses” was improper as compared to the Guidelines themselves. 

890 F.3d at 1089-91. It concluded that “Section 4B1.2(b) 

presents a very detailed ‘definition’ of controlled substance 

offense that clearly excludes inchoate offenses.” Id. at 1091.
41

The Court finds that reasonable jurists would not debate 

that the crime-of-violence definition under § 4B1.2(a) at the 

time of Mr. Crews’ sentencing included attempt offenses like 

attempted Hobbs Act robbery. Application Note 1 to § 4B1.2

specifically states that a crime of violence “include[s] the 

offenses of aiding and abetting, conspiring, and attempting to 

commit such offenses.” U.S.S.G. § 4B1.2, cmt., application n.1

(emphasis added). This is clear textual evidence that neither 

Price nor Winstead disputes. Price’s holding was also narrow, 

limited only to invalidating conspiracies to commit controlled 

substance offenses under § 994(h), 990 F.2d at 1368-70; and it 

was in fact superseded by the Commission’s 1998 amendment of § 

4B1.1 to include inchoate crimes, see U.S.S.G. § 4B1.2 (defining 

controlled substance offenses, like crimes of violence, to 

include “aiding and abetting, conspiring, and attempting to 

commit such offenses”); see also United States v. Powell, 161 

F.3d 738, 739 (D.C. Cir. 1998) (discussing this 1998 amendment 

that followed “this court’s decision in Price”). 

Neither does Winstead’s holding support Mr. Crews’ 

ineffective assistance of appellate counsel claim. Winstead

specifically analyzed the definition of a “controlled substance 

offense” under § 4B1.2(b) and distinguished Application Note 1’s 

guidance with respect to whether crimes of violence include 

inchoate offenses. See Winstead, 890 F.3d at 1091 n.12 (“We 
42

address only the scope of the definition of ‘controlled 

substance offense.’”). The Winstead court noted in relation to 

crimes of violence that “the Commission showed within § 4B1.2

itself that it knows how to include attempted offenses when it 

intends to do so.” Id. It thereafter distinguished “the 

inclusion of attempt in § 4B1.2’s definition of ‘crime of 

violence’” from the notable absence of attempt in the controlled 

substance offense definition, noting “the drafters declined to 

include attempt” in the latter despite its presence in the 

former. Id. at 1092. As the government notes, “[t]his difference 

is significant,” Gov’t’s COA Opp’n Mot., ECF No. 369 at 20; and 

the Court rejects Mr. Crews’ assertion that “the principle 

remains the same” despite his case involving a crime of violence 

and Winstead and Price involving controlled substance offenses, 

see Def.’s COA Mot., ECF No. 366 at 25.18

Mr. Crews provides no other caselaw to support his claim

that appellate counsel should have been on notice about briefing 

an alleged difference in the Court’s treatment between attempted 

18 The Court does not address the government’s arguments 

concerning Winstead’s retroactivity, as Mr. Crews raises no 

arguments on this point. See Gov’t’s COA Opp’n Mot., ECF No. 369

at 19-20. The Court noted in its Memorandum Opinion denying Mr. 

Crews’ § 2255 Motion that “even if Winstead applied 

retroactively, the elements clause specifically covers offenses 

that have ‘as an element the use, attempted use, or threatened 

use of physical force.’” Mem. Op., ECF No. 360 at 45 (citing § 

4B1.2(a) (emphasis added)). Mr. Crews does not now raise any 

arguments disputing this conclusion.
43

and completed Hobbs Act robbery for purposes of his career 

offender designation. The Court thus reiterates its conclusion

that “[a]s for attempted extortion, at the time of Mr. Crews’ 

sentencing, the inclusion of attempt offenses in the commentary 

to § 4B1.2 supported the assumption that attempted enumerated 

offenses were crimes of violence” and that therefore “attempted 

Hobbs Act robbery satisfies the enumerated offense clause.”19

Mem. Op., ECF No. 360 at 45. Moreover, the Supreme Court has 

held that Guidelines commentary “is authoritative unless it 

violates the Constitution or a federal statute, or is 

inconsistent with, or a plainly erroneous reading of, that 

guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S. 

Ct. 1913 (1993). Therefore, Application Note 1 to § 4B1.2, being 

not inconsistent with the Guideline, settles for reasonable 

jurists that a crime of violence includes an attempt to commit 

such an offense. See U.S.S.G. § 4B1.2, cmt., application n.1.

Notwithstanding the above failures, Mr. Crews contends that 

“[a]t a minimum,” he is entitled to “a hearing to address the 

19 The government correctly notes that Mr. Crews’ argument 

surrounding Price and Winstead solely focuses on the Court’s 

conclusion that attempted Hobbs Act robbery at the time of Mr. 

Crews’ sentencing qualified as a crime of violence under § 

4B1.2(a)’s enumerated offense clause and does not address the

Court’s dual holding that attempted Hobbs Act robbery also 

satisfied the former residual clause of § 4B1.2(a) that existed 

in 2014 when Mr. Crews was sentenced. See Govt’s COA Opp’n Mot., 

ECF No. 369 at 19. Mr. Crews proffers no arguments to that 

effect regarding attempted versus completed Hobbs Act robbery.
44

conscious decision of appellate counsel to not pursue [this]

nonfrivolous, preserved claim on appeal[.]” Def.’s COA Mot., ECF 

No. 366 at 26. However, a district court is entitled “to deny 

summarily a Section 2255 motion without holding an evidentiary 

hearing when ‘the motion and the files and records of the case 

conclusively show that the prisoner is entitled to no relief.’” 

Agramonte, 366 F. Supp. 2d at 85 (quoting 28 U.S.C. § 2255). 

Moreover, “a district judge’s decision not to hold an 

evidentiary hearing before denying a § 2255 motion is generally 

respected as a sound exercise of discretion” when, as here, “the 

judge denying the § 2255 motion also presided over the trial in 

which the petitioner claims to have been prejudiced.” United 

States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996). 

Contrary to Mr. Crews’ assertions, nothing in United States 

v. Agramonte, 366 F. Supp. 2d 83 (D.D.C. 2005) supports 

concluding that reasonable jurists would debate whether Mr. 

Crews is entitled to an evidentiary hearing to address his 

appellate counsel’s decision not to appeal his career offender 

designation. See Def.’s COA Mot., ECF No. 366 at 26 (contending 

that a hearing was necessary “to complete the record”). Although 

appellate counsel in Agramonte submitted an affidavit discussing 

his decision not to pursue certain issues on appeal, this 

affidavit was not discussed during an evidentiary hearing; 

rather, the D.C. Circuit determined that the defendant “failed 
45

to present a creditable basis on which either relief should be 

granted or a hearing need be held.” 366 F. Supp. 2d at 85-87. 

Such is the case here, because, for the aforementioned reasons, 

reasonable jurists would not debate that Mr. Crews’ appellate 

counsel provided effective assistance of counsel given Mr. 

Crews’ failure to establish a reasonable probability that 

attempted Hobbs Act robbery would not qualify as a crime of 

violence under any of § 4B1.2(a)’s three clauses at the time of 

his sentencing.

Because Mr. Crews has not made “a substantial showing of 

the denial of a constitutional right,” the Court DENIES his 

motion for a certificate of appealability on his ineffective 

assistance of appellate counsel claim. See 28 U.S.C. §

2253(c)(2).

C. Reasonable Jurists Would Not Debate that Mr. Crews’ 

Sentence Should Not Be Reconsidered Based Upon the 

Supreme Court’s Rulings in Johnson, Dimaya, and Davis

Finally, Mr. Crews argues that reasonable jurists could 

debate the application of the Supreme Court’s rulings in 

Johnson, Dimaya, and Davis to his sentence, particularly 

regarding whether the former residual clause of § 4B1.2(a)(2) is 

void for vagueness. See Def.’s COA Mot., ECF No. 366 at 28; 

Johnson, 576 U.S. at 606 (invalidating residual clause in the 

ACCA, 18 U.S.C. § 924(e)(2)(B)); Dimaya, 138 S. Ct. at 1210 

(invalidating residual clause in the INA, 18 U.S.C. § 16(b)); 
46

Davis, 139 S. Ct. at 2319 (invalidating residual clause in 18 

U.S.C. § 924(c)(3)(B)). In previously rejecting this argument, 

the Court determined that “Johnson, Dimaya and Davis, all of 

which overturned the residual clause in federal statutes, are 

easily distinguished since they involved statutes that are not 

at issue in Mr. Crews’s conviction.” Mem. Op., ECF No. 360 at 

68-69. The Court then distinguished the Sentencing Guidelines 

from the statutes at issue in Johnson, Dimaya and Davis, noting 

that “by virtue of being advisory,” the Guidelines “do not 

implicate the twin concerns underlying vagueness doctrine —

providing notice and preventing arbitrary enforcement.” Id. at 

69 (quoting Beckles, 137 S. Ct. at 894). So even though the 

former residual clause in § 4B1.2(a)(2) was identically worded 

to the ACCA’s residual clause analyzed in Johnson, the Court 

noted Beckles’ holding that the Guidelines are “not void for 

vagueness.” Id. (citing Beckles, 137 S. Ct. at 895).

The only new challenge Mr. Crews brings to the Court’s 

conclusion is in reference to United States v. Carter, 422 F. 

Supp. 3d 299 (D.D.C. 2019). See Def.’s COA Mot., ECF No. 366 at

27-28. In Carter, Judge Ellen Segal Huvelle held that the former 

residual clause in § 4B1.2 of the previously mandatory

Sentencing Guidelines was void for vagueness as applied to Mr. 

Carter, who was sentenced pursuant to the guidelines before they 

became advisory under United States v. Booker, 543 U.S. 220, 125 
47

S. Ct. 738 (2005). Carter, 422 F. Supp. 3d at 317. Mr. Crews 

calls attention to Judge Huvelle’s summary of Justice 

Sotomayor’s concurrence in Beckles: “Justice Sotomayor [ ] wrote 

separately to explain that although she did not agree with the 

Court’s holding that the advisory Guidelines were not subject to 

vagueness challenges, the majority’s analysis at least left open 

the question whether the residual clause in the mandatory 

Guidelines was unconstitutionally vague[.]” Id. at 303-04; see

Def.’s COA Mot., ECF No. 366 at 27-28. He argues that this 

commentary indicates “concern with the broad sweep of Beckles,” 

such that “reasonable jurists can differ on this issue of 

constitutional significance.” Def.’s COA Mot., ECF No. 366 at 

28.

As the government contends, see Gov’t’s COA Opp’n Mot., ECF 

No. 369 at 22; Mr. Crews’ citation to this portion of Justice 

Sotomayor’s concurrence is misguided, as any reference to open 

questions regarding the treatment of the residual clause in the 

previously mandatory Sentencing Guidelines is inapplicable to 

Mr. Crews, who was sentenced pursuant to the post-Booker

advisory guidelines regime. In her concurrence, Justice 

Sotomayor referenced “the formalistic distinction between 

mandatory and advisory rules” and noted the open question of 

“whether defendants sentenced in terms of imprisonment before” 

Booker could “mount vagueness attacks on their sentences.” 
48

Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring). 

Because this question does not apply to Mr. Crews, reasonable 

jurists would not disagree that the advisory guidelines are not 

subject to vagueness challenges, Beckles, 137 S. Ct. at 890; and 

that Johnson, Dimaya, and Davis do not affect Mr. Crews’ 

sentence, see Mem. Op., ECF No. 360 at 69.

Because Mr. Crews has not made “a substantial showing of 

the denial of a constitutional right,” the Court DENIES his 

motion for a certificate of appealability on his sentencing 

reconsideration claim. See 28 U.S.C. § 2253(c)(2).

V. Conclusion

For the foregoing reasons, Mr. Crews’ motion for 

certificate of appealability, ECF No. 366, is DENIED. An

appropriate Order accompanies this Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan

United States District Judge

December 12, 2022