United States District Court, S.D. Indiana, Indianapolis Division
KERRY D. YOUNG, Petitioner,
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, Judge
Seventh Circuit Court of Appeals authorized the petitioner to
file a second or successive motion to vacate under 28 U.S.C.
§ 2255, which led to the opening of this action. In his
§ 2255 motion, the petitioner argues that, under
Johnson v. United States, 135 S.Ct. 2551 (2015), his
sentence is unconstitutional. The Court appointed counsel for
the petitioner, but the petitioner's counsel eventually
withdrew. The petitioner then filed a pro se brief
in support of his motion that raises additional
non-Johnson claims. The respondent filed a response
brief addressing all of the petitioner's claims. The
petitioner's deadline to file a reply brief has passed
and he has not filed anything with the Court. For the reasons
stated below, the petitioner's motion for relief under
§ 2255 is denied.
the petitioner challenges his sentence pursuant to
Johnson. The Seventh Circuit recently summarized
Johnson holds that part of 18 U.S.C. §
924(e)(2)(B)(ii) is unconstitutional. . . . The statute
defines some of these categories and adds a kicker in clause
(ii), which 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”.
The part of clause (ii) that begins “or otherwise
involves” is known as the residual clause.
Johnson holds that the residual clause is
Stanley v. United States, 827 F.3d 562, 564 (7th
Cir. 2016). The petitioner argues that he was sentenced as a
career offender under United States Sentencing Guideline
§ 4B1.2(a)(2) and thus because Johnson held
that the residual clause of the Armed Career Criminal Act is
unconstitutionally vague, it follows that the identical
residual clause in the career offender provision of the
Sentencing Guidelines is also unconstitutionally vague.
respondent points out that the petitioner was not sentenced
pursuant to the career offender provision but, instead, was
sentenced to 180 months' imprisonment in accordance with
the terms of the Plea Agreement. But even if he was sentenced
as a career offender, the Supreme Court in Beckles v.
United States, 137 S.Ct. 886 (2017), held that the
Sentencing Guidelines are not subject to vagueness challenges
under the Due Process Clause. In other words, the holding of
Johnson does not apply to cases, like the
petitioner's, challenging guideline calculations, and
thus he is not entitled to relief on this
the petitioner's supplemental brief raises claims
pursuant to Dean v. United States, 137 S.Ct. 1170
(2017), and Mathis v. United States, 136 S.Ct. 2243
(2016). But the Seventh Circuit only authorized the
petitioner to raise a Johnson claim in his
successive § 2255 motion. See No.
1:09-cr-00081-WTL-KPF-1, Dkt. 39 at 1 (“[W]e . . .
AUTHORIZE the district court to consider the Johnson
claim, along with the government's defenses.”). The
petitioner cannot raise non-Johnson claims, such as
those under Dean and Mathis, without first
receiving authorization from the Seventh Circuit.
See 28 U.S.C. § 2244(b)(3)(A); see also
Holt v. United States, 843 F.3d 720, 722-23 (7th Cir.
2016). Because he has not done so, this Court may not
consider those claims.
foregoing shows that the petitioner is not entitled to relief
pursuant to 28 U.S.C. § 2255. Judgment consistent with
this Entry shall now issue.
Entry shall also be entered on the docket in the underlying
criminal action, No. 1:09-cr-00081-WTL-KPF-1.
to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of
the Rules Governing § 2255 Proceedings, and 28
U.S.C. § 2253(c), the Court finds that the petitioner
has failed to show that reasonable jurists would find it
“debatable whether the petition states a valid claim of
the denial of a constitutional right” and
“debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). The Court therefore denies a
certificate of appealability.
 As an alternative basis to reject the
petitioner's claims, the respondent argues that the
collateral attack waiver in his Plea Agreement forecloses him
from challenging his sentence. Because the petitioner's
claims lack merit, the Court need not address whether the