United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
matter is before the Court on the letter filed by Michael
Thomas Wilson (“Wilson”) on June 23, 2016 (DE
#55), and Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody,
filed by Wilson on August 15, 2016 (DE #57). For the reasons
set forth below, the relief sought in both the letter and
motion is DENIED.
March 4, 2010, Wilson was charged with two counts of
distribution of child pornography and one count of possession
of child pornography. He pled guilty to all three counts and
was sentenced to 210 months of imprisonment for each of
Counts One and Two and 120 months of imprisonment on Count
Three, to be served concurrently.
did not file a direct appeal, but on June 23, 2016, he filed
a letter with this Court inquiring regarding his eligibility
for a sentence reduction under Johnson v. United
States, ___ U.S. ___, 35 S.Ct. 2551');">135 S.Ct. 2551 (June 26, 2015).
This Court construed the letter as a motion pursuant to 28
U.S.C. section 2255 and directed Wilson to notify this Court
whether he wished to withdraw the instant petition or whether
he wished to add any other arguments for collateral relief on
or before July 29, 2016. He was further instructed to provide
a memorandum accompanied with citations to legal authority.
In response, Wilson filed the instant section 2255 motion.
The motion is not accompanied by a memorandum or citation to
any legal authority, but contains four separate grounds for
asks this Court to determine “whether the removal of
the residual clause by the United States Sentencing
Commission on January 8, 2016 applies to [his] case.”
(DE #57 at 4). He further seeks a determination regarding
“whether Amendment 794 lowers [his] base offense
level.” (Id.). He claims that his trial
counsel provided ineffective assistance of counsel.
(Id.). And, lastly, he seeks a determination of
whether his Sixth and Fifth Amendment rights were violated at
sentencing. (Id. at 5).
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