United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
matter is before the Court on the Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody, filed by Petitioner, Donnie L.
Johnson, on June 7, 2016 (DE #164). For the reasons set forth
below, the motion is DENIED.
motion to hold this case in abeyance, filed on June 7, 2016,
is also before the Court (DE #166). For the reasons set forth
below, the motion is DENIED AS MOOT.
this Court declines to issue Defendant a certificate of
appealability. The Clerk is FURTHER ORDERED to distribute a
copy of this order to Donnie Johnson, #07966-027, Pekin FCI,
Federal Correction Institution, Inmate Mail/Parcels, P.O. Box
5000, Pekin, IL 61555, or to such other more current address
that may be on file for Donnie Johnson.
December 7, 2004, a jury found Defendant guilty of possession
of a firearm as a felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 924(e)(1). (DE #87.)
At the sentencing hearing held before this Court on June 28,
2005, and over Defendant's objection, the Court
determined that Defendant had four prior violent felony
convictions that qualified him for the enhanced penalties of
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). (DE #115 at 64.) Therefore, the Court
sentenced Defendant to 275 months imprisonment and 2 years of
supervised release. (DE #115 at 72.) If the Defendant had not
qualified as an Armed Career Criminal, his statutory maximum
term of imprisonment would have been 120 months pursuant to
18 U.S.C. § 924(a)(2).
qualifying Indiana convictions included the following: (1) a
1982 conviction for dealing LSD; (2) a 1984 conviction for
burglary; (3) a 1989 conviction for criminal deviate conduct;
and (4) a 1990 conviction for escape resulting in bodily
injury. (DE #115 at 59-64.) Defendant appealed his conviction
and the Seventh Circuit Court of Appeals affirmed. United
States v. Johnson, 181 Fed. App. 586, 588-89 (7th Cir.
2006). Defendant filed a motion to vacate under section 2255,
which was denied by this Court on September 30, 2008. (DE
#141.) Defendant then filed an application pursuant to 28
U.S.C. § 2244(b)(3), seeking authorization to file a
successive motion to vacate under § 2255. The Seventh
Circuit ruled that because Johnson v. United States,
135 S.Ct. 2551 (2015), announced a new substantive rule of
constitutional law, it has retroactive application. (DE #161
(citing Price v. United States, 795 F.3d 731 (7th
Cir. 2015)). The Seventh Circuit Court of Appeals noted that
Johnson's escape conviction may no longer qualify as a
violent felony. Therefore, the Court granted Defendant's
application for a successive petition and authorized this
Court to consider his claim. (DE #161.)
filed the instant motion under section 2255 on June 7, 2016,
setting forth one argument: he does not qualify for enhanced
penalties under the ACCA because three of his predicate
offenses fell within the ACCA's residual clause, and that
clause has been found unconstitutional by the Supreme Court
in Johnson v. United States, 135 S.Ct. 2551 (June
26, 2015). The Government filed a response brief on August
19, 2016. Defendant filed a reply brief on September 15,
2016. The motion is ripe for adjudication.
corpus relief under 28 U.S.C. section 2255 is reserved for
“extraordinary situations.” Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996). In order to
proceed on a habeas corpus motion pursuant to 28 U.S.C.
section 2255, a federal prisoner must show that the district
court sentenced him in violation of the Constitution or laws
of the United States, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack. Id.
section 2255 motion is neither a substitute for nor
recapitulation of a direct appeal. Id.; Belford
v. United States, 975 F.2d 310, 313 (7th Cir. 1992),
overruled on other grounds by Castellanos v.
United States, 26 F.3d 717 (7th Cir. 1994). As a result:
[T]here are three types of issues that a section 2255 motion
cannot raise: (1) issues that were raised on direct appeal,
absent a showing of changed circumstances; (2)
nonconstitutional issues that could have been but were not
raised on direct appeal; and (3) constitutional issues that
were not raised on direct appeal, unless the section 2255
petitioner demonstrates cause for the procedural default as
well as actual prejudice from the failure to appeal.
Belford, 975 F.2d at 313. Additionally, aside from
demonstrating “cause” and “prejudice”
from the failure to raise constitutional errors on direct
appeal, a section 2255 petitioner may alternatively pursue
such errors after demonstrating that the district court's
refusal to consider the claims would lead to a fundamental
miscarriage of justice. McCleese v. United States,
75 F.3d 1174, 1177 (7th Cir. 1996).
assessing Defendant's motion, the Court is mindful of the
well-settled principle that, when interpreting a pro se
petitioner's complaint or section 2255 motion, district
courts have a “special responsibility” to
construe such pleadings liberally. Donald v. Cook County
Sheriff's Dep't, 95 F.3d 548, 555 (7th
Cir.1996); Estelle v. Gamble, 429 U.S. 97, 106
(1976) (a “pro se complaint, ‘however inartfully
pleaded' must be held to ‘less stringent standards
than formal pleadings drafted by lawyers.'”)
(quoting Haines v. Kerner, 404 U.S. 519 (1972));
Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002)
(“pro se habeas petitioners are to be afforded
‘the benefit of any doubt.'”) (quoting
Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.
1985)). In other words:
The mandated liberal construction afforded to pro se
pleadings “means that if the court can reasonably read
the pleadings to state a valid claim on which the
[petitioner] could prevail, it should do so despite the
[petitioner's] failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999) (habeas petition from state court conviction)
(alterations in original) (quoting Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991)). On the other hand,
“a district court should not ‘assume the role of
advocate for the pro se litigant' and may ‘not
rewrite a petition to include claims that were never
presented.'” Id. Here, the Court assessed
Defendant's claim with these guidelines in mind.