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 Brian Washington on July
1, 2016 (DE #50). For the reasons set forth below, the motion
1, 2013, Washington was charged in a six count indictment
with both possessing and distributing cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B),
two counts of possessing firearms in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c),
and two counts of dealing in firearms without a license in
violation of 18 U.S.C. §§ 922(a)(1)(A) and
924(a)(1)(D). He pled guilty to Count One (distribution of
cocaine base) and Count Two (possessing a firearm in
furtherance of a drug trafficking crime) and was sentenced to
63 months of incarceration on Count One and 60 months of
incarceration on Count Two.
did not file a direct appeal, but on February 9, 2015, he
filed a motion requesting a reduction in his sentence
pursuant to 18 U.S.C. § 3582(c)(2) as a result of
Amendment 782 to the United States Sentencing Guidelines. On
July 13, 2015, this Court reduced Washington's sentence
on Count One to 60 months. His sentence on Count Two was
unaffected by Amendment 782.
one year later, Washington filed the instant motion seeking a
further reduction in his sentence under Johnson v. United
States, ___ U.S. ___, 135 S.Ct. 2551 (June 26, 2015).
The Government filed its response brief on July 26, 2016.
Washington did not file a reply brief. 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).
assessing Petitioner'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 Cnty.
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