United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Tyson Allen's Motion to Correct Sentence Under 28 U.S.C.
§ 2255 [ECF No. 150] is pending before this Court. The
basis for the Defendant's Motion is the Supreme
Court's holding in Johnson v. United States, 135
S.Ct. 2551 (2015), striking down as unconstitutionally vague
the residual clause of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)(2)(B)(ii). The Defendant argues that
his sentence was based on a Guideline enhancement under the
identically worded residual clause of U.S.S.G. §
4B1.2(a)(2) which, in light of Johnson, is unlawful.
He asks to be re-sentenced without the enhancement.
March 13, 2017, the Government filed a Notice of Supplemental
Authority, alerting this Court to the Supreme Court's
decision in Beckles v. United States, 137 S.Ct. 886,
2017 WL 855781 (Mar. 6, 2017), wherein the Court held that
the United States Sentencing Guidelines are not subject to
due process vagueness challenges. Accordingly, the residual
clause found in § 4B1.2(a)(2) is not void for vagueness.
Beckles, 2017 WL 855781, at * 6, 9. The Supreme
Court held that its prior decision finding unconstitutionally
vague the residual clause in the ACCA did not affect the
identically worded residual clause in the Sentencing
Guidelines. Id. at * 3, 5-6 (citing
Johnson, 135 S.Ct. at 2563).
March 21, 2017, the Defendant filed a Motion to Withdraw
Motion to Correct Sentence Under 28 U.S.C. § 2255 [ECF
No. 161], citing to the Supreme Court's decision in
Beckles. As the Defendant states, “it is
futile” for him “to continue with his Motion to
Correct Sentence Under 28 U.S.C. § 2255 based upon
Johnson.” (Mot. to Withdraw 2.)
Court takes no issue with the Defendant's request that he
be allowed to withdraw his Motion to Correct Sentence on
grounds that it would be futile to proceed. However, the
Court does wish to clarify the potential effect of the
withdrawal. Under the Anti-Terrorism and Effective
Death Penalty Act (AEDPA), prisoners are entitled to one full
opportunity to pursue collateral review. See Vitrano v.
United States, 643 F.3d 229, 233 (7th Cir. 2011).
However, prisoners are barred from filing second or
successive habeas petitions unless they obtain certification
to do so from the court of appeals. See 28 U.S.C.
§ 2255(h) (providing that a “second or successive
motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals”); Suggs
v. United States, 705 F.3d 279, 282 (7th Cir. 2013)
(citing Burton v. Stewart, 549 U.S. 147, 152-53
(2007)) (“Without authorization from the court of
appeals, the district court has no jurisdiction to hear the
petition.”); United States v. Carraway, 478
F.3d 845, 849 (7th Cir. 2007) (holding that unless the
defendant “seeks and obtains permission from the court
of appeals to file [a second or successive] motion, the
district court is without jurisdiction to entertain his
The problem is that the AEDPA does not define “second
or successive.” And counting from one to two in this
context is not quite as elementary as it may seem;
numerically second filings only trigger the second or
successive prohibition if they follow a filing that
“counts” as the prisoner's first (and only)
opportunity for collateral review.
Vitrano, 643 F.3d at 233.
§ 2255 motion need not be adjudicated on the merits to
‘count' as a prisoner's first motion for AEDPA
purposes.” Id. (citing Felder v.
McVicar, 113 F.3d 696, 697 (7th Cir. 1997)). For
example, even if a prisoner voluntarily dismisses a §
2255 motion, he may be required to seek permission to file a
second motion. Compare Felder, 113 F.3d at 698
(voluntarily dismissed motion “counts” when it is
withdrawn due to conceding defeat), with Garrett v.
United States, 178 F.3d 940, 942-43 (7th Cir.1999)
(distinguishing Felder because motions were
voluntarily withdrawn to obtain legal assistance to further
development claims before the government responded). In
Potts v. United States, 210 F.3d 770 (7th Cir.
2000), the court described the difference as one between
withdrawing the motion before the defendant “has any
reason to think it is going to be denied (maybe he realizes
that because of lack of legal assistance he cannot articulate
his legal claim), ” such as in Garrett,
“and cases in which he withdraws it when it becomes
clear to him that it is indeed about to be denied, ”
which was illustrated in Felder. Id. at
situation here aligns with the dismissal in Felder.
Accordingly, even if the Defendant withdraws his Motion, any
subsequent habeas motion will have to comply with the
AEDPA's requirements for second or successive motions.
See Id. at 771 (noting that because the defendant
decided to withdraw his § 2255 motion only after
“seeing the handwriting on the wall” his second
motion should have been dismissed because he did not
“demonstrate compliance with the conditions on the
filing of a second or successive such motion”);
Nunez v. United States, 96 F.3d 990, 991 (7th Cir.
1996). (“A district court must dismiss a
second or successive petition, without awaiting any response
from the government, unless the court of appeals has given
approval for its filing.”).
Court highlights these realities because the Defendant should
be provided an opportunity to consider whether he can amend
his current Motion before he decides to withdraw the one full
opportunity to seek collateral review the AEDPA provides.
See Johnson v. United States, 196 F.3d 802, 805 (7th
Cir. 1999) (noting that a part of the opportunity for
collateral review is “an entitlement to add or drop
issues while the litigation proceeds” that is governed
by Federal Rule of Civil Procedure 15(a)); see also
Vitrano, 643 F.3d at 234. However, the Defendant must be
mindful of the AEDPA's statute of limitations, including
the fact that where a sentence is unaffected by
Johnson or any other “retroactively
applicable” right “newly recognized by the
Supreme Court, ” no fresh window to file a collateral
attack exists. 28 U.S.C. § 2255(f)(3); see also
Stanley v. United States, 827 F.3d 562, 564 (7th Cir.
reasons stated above, the Court WITHHOLDS ruling on the
Defendant's Motion to Withdraw Motion to Correct Sentence
Under 28 U.S.C. § 2255 [ECF No. 150]. If, by June 16,
2017, the Court does not receive a supplement from the
Defendant indicating otherwise, the Court will presume that
the Defendant still intends to withdraw his Motion to Correct
Sentence Under 28 U.S.C. § 2255 [ECF No. 161]. The
procedural impact of withdrawing the Motion to Correct
Sentence will not be definitively determined unless and until
the Defendant attempts to file another habeas motion.