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United States v. Hoskins

United States District Court, N.D. Indiana, Hammond Division

October 31, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ROSIVITO HOSKINS, Defendant/Petitioner.

          OPINION AND ORDER

          RUDY LOZANO, JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on the Motion to Correct Sentence Under 28 U.S.C. § 2255, filed by Rosivito Hoskins (“Hoskins”) on June 21, 2016 (DE #75).[1] For the reasons set forth below, the motion is DENIED. Further, this Court declines to issue Defendant a certificate of appealability. The Clerk is FURTHER ORDERED to distribute a copy of this order to Rosivito Hoskins, #06048-027, Federal Correctional Institution, Inmate Mail/Parcels, P.O. Box 1000, Miles, MI 48160, or to such other more current address that may be on file for the Defendant.

         BACKGROUND

         On December 9, 1999, a jury found Rosivito Hoskins (“Hoskins”) guilty of possession of a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1). (DE #37). The Court determined that Hoskins had three prior violent felony convictions that qualified him for the enhanced penalties of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Hoskins was sentenced to 293 months of imprisonment. (DE #55).

         Hoskins' qualifying Indiana convictions included the following: (1) a 1984 conviction for criminal recklessness; (2) a 1979 conviction for robbery; and (3) a 1979 conviction for burglary. (DE #115 at 59-64). Defendant appealed his conviction and the Seventh Circuit Court of Appeals affirmed.

         Hoskins filed the instant motion under section 2255 on June 21, 2016, arguing that, in light of Johnson v. United States, 135 S.Ct. 2551 (June 26, 2015), he no longer has three qualifying convictions and his sentence is therefore unlawful. The Government filed a response brief on July 28, 2016. Defendant filed a reply brief on August 31, 2016. The motion is ripe for adjudication.

         DISCUSSION

         Habeas 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 motion 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.

         A 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).

         The Supreme Court of the United States recently analyzed whether the residual clause of the 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 laws.

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 ...


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