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United States v. Johnson

United States District Court, N.D. Indiana, Hammond Division

March 24, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
DONNIE JOHNSON, Defendant/Petitioner.


          RUDY LOZANO, Judge

         This 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.

         A 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.

         Further, 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.


         On 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).

         Defendant's 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.)

         Defendant 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.


         Habeas 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.

         A 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).

         In 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 requirements.”

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.

         The Residual ...

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