United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, Judge United States District Court
Southern District of Indiana
reasons explained in this Entry, the motion of Robert Stokes
(“Mr. Stokes”) for relief pursuant to 28 U.S.C.
§ 2255 must be denied and the action
dismissed with prejudice. In addition, the Court finds that a
certificate of appealability should not issue.
The § 2255 Motion
August 31, 2011, Mr. Stokes was convicted in No.
1:11-cr-0002-WTL-KPF-1 of possession of a firearm in
furtherance of drug trafficking, a violation of 18 U.S.C.
§ 924(c), and of being a felon in possession of a
firearm, a violation of 18 U.S.C. § 922(g)(1). Mr.
Stokes was sentenced to 60 months imprisonment on the §
924(c) offense and to 96 months on the § 922(g)(1)
offense, to be served consecutively. No appeal from this
disposition was filed.
Mr. Stokes' first motion to vacate. It was placed in the
prison mailing system on April 11, 2016, and filed with the
Clerk on April 18, 2016. The United States has responded to
the § 2255 motion by arguing that Mr. Stokes'
challenge based on Johnson v United States, 135
S.Ct. 2551 (2015) warrants no relief.
motion pursuant to 28 U.S.C. § 2255(a) is the
presumptive means by which a federal prisoner can challenge
his conviction or sentence. See Davis v. United
States, 417 U.S. 333, 343 (1974). The Antiterrorism and
Effective Death Penalty Act of 1996 establishes a one-year
statute of limitations period for § 2255 motions, 28
U.S.C. § 2255(f). For purposes of § 2255(f)(1),
that period runs from “the date on which the judgment
of conviction becomes final.” A judgment of conviction
becomes final when the conviction is affirmed on direct
review or when the time for perfecting an appeal expires.
Clay v. United States, 537 U.S. 522, 527 (2003).
Stokes' judgment of conviction was entered on the
clerk's docket on August 31, 2011. The last day on which
a timely notice of appeal could have been filed was September
14, 2011. The motion to vacate was filed three years and
seven months after the general one year statute of
limitations expired. 28 U.S.C. § 2255(f)(1).
the parties do not address the statute of limitations issue
directly, Mr. Stokes argues, as his only claim, that the
decision in Johnson renders his sentence unlawful.
Johnson was decided on June 26, 2015, and the one
year statute of limitation begins from the date a
constitutional right is first recognized by the Supreme Court
and is made retroactively applicable to cases on collateral
review. 28. U.S.C. § 2255(f)(3). The Supreme Court has
found its holding in Johnson is retroactively
applicable to cases on collateral review. United States
v. Welch, 136 S.Ct. 1257 (2016). If Mr. Stokes'
claim falls within the scope of the Johnson
decision, it would not be time barred. See Stanley v.
United States, 827 F.3d 562 (7th Cir. 2016).
Stokes' reliance on § 2255(f)(3) and
Johnson to overcome the limitations bar, however, is
misplaced. Johnson has no bearing on his case.
holds that part of 18 U.S.C. § 924(e)(2)(B)(ii) is
unconstitutional.” Stanley, 827 F.3d at 564.
“Subsection 924(e), called the Armed Career Criminal
Act, requires longer sentences for persons convicted of three
or more violent felonies or serious drug offenses.”
Id. Subsection 924(e)(2)(B)(ii) “classifies as
a violent felony any crime that ‘is burglary, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.'” Id. (quoting
section 924(e)(2)(B)(ii))(emphasis added). The part of the
clause that is italicized in the preceding sentence is the
“residual clause, ” which Johnson
declared is unconstitutionally vague.
Stokes' conviction of illegal possession of a firearm has
“never qualified as a violent felony”
and therefore is “unaffected by
Johnson.” Stanley, 827 F.3d at 565.
Mr. Stokes' prior convictions on which his § 922(g)
“felon in possession” conviction was based were
drug and firearm offenses. Of most significance is the fact
that Mr. Stokes was not sentenced under the ACCA nor was his
sentence enhanced in any way by a crime of violence. The
residual clause of the ACCA simply did not come into play
when Mr. Stokes was sentenced.
Johnson does not render Mr. Stokes' sentence
unlawful, and in fact, does not apply at all to his
convictions, he is not granted “a fresh window to file
a collateral attack.” Stanley, 827 ...