United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, JUDGE UNITED STATES DISTRICT COURT
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). 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.
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).
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.
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.
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.
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).
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
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