United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
matter is before the Court on the Motion to Vacate Sentence
Pursuant to 28 U.S.C. § 2255, filed by Delta Wilder on
June 24, 2016 (DE #359). For the reasons set forth below, the
motion is DENIED.
August 7, 2009, Delta Wilder (“Wilder”) was
charged in a superseding indictment with aggravated bank
robbery in violation of 18 U.S.C. § 2113(d)(Count Two),
two counts of bank robbery in violation of 18 U.S.C. §
2113(a) and 18 U.S.C. § 2 (Counts Three and Five), and
brandishing a firearm during a crime of violence in violation
of 18 U.S.C. § 924(c)(1)(A)(ii) (Count Six). He pled
guilty to Count Two (aggravated bank robbery) and Count Six
(brandishing a firearm during a crime of violence). He was
sentenced to 24 months of incarceration on Count Two and 84
months of incarceration on Count Six, to be served
consecutively. Wilder did not file a direct appeal.
filed the instant motion pursuant to Johnson v. United
States, ___ U.S. ___, 135 S.Ct. 2551 (June 26, 2015).
The Government filed its response brief on July 22, 2016.
Wilder filed a reply brief on August 25, 2016. Accordingly,
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 petition 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).
Johnson, the Supreme Court of the United States
analyzed whether the residual clause of the Armed Career
Criminal Act (“ACCA”) is void for vagueness.
Johnson v. United States, 135 S.Ct. 2551 (2015). As
Justice Scalia noted:
Under the Armed Career Criminal Act of 1984, a defendant
convicted of being a felon in possession of a firearm faces
more severe punishment if he has three or more previous
convictions for a “violent felony, ” a term
defined to include any felony that “involves conduct
that presents a serious potential risk of physical injury to
another.” 18 U.S.C. §924(e)(2)(B). We must decide
whether this part of the definition of a violent felony
survives the Constitution's prohibition of vague criminal
Id. at 2555. Ultimately, the Supreme Court held that
“imposing an increased sentence under the residual
clause of the Armed Career Criminal Act violates the
Constitution's guarantee of due process.”
Id. at 2563. It therefore overruled its prior
decision in Sykes v. United States, 131 S.Ct. 2267
(2011), and held that the residual clause of the definition
of violent felony in the ACCA was unconstitutionally vague.
Johnson, 135 S.Ct. at 2563. The Johnson
decision is retroactive on both direct appeal and collateral
review. Price v. United States, 795 F.3d 731, 732
(7th Cir. 2015).
ACCA applies when a defendant has three convictions that
constitute a “violent felony” or a “serious
drug offense.” 18 U.S.C. § 924(e)(1). Wilder was
not sentenced under the ACCA. Rather, he was sentenced under
18 U.S.C. 924(c), a provision that defines “crime of
violence” similarly to the definition of “violent
felony” found in the ACCA. At the time the parties
briefed the instant motion, the Seventh Circuit Court of
Appeals had not determined whether the holding in
Johnson extended to the definition of “crime
of violence” found in 18 U.S.C. § 924(c). The
Seventh Circuit has since determined that
Johnson's holding does extend to 18 U.S.C.