United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR MODIFY
SENTENCE AND DIRECTING ENTRY OF FINAL JUDGMENT AND IMMEDIATE
RELEASE OF PETITIONER
WALTON PRATT, United States District Judge.
reasons explained in this Order, the Motion filed by Dewan
Anthony Horne (“Horne”) for relief pursuant to 28
U.S.C. § 2255 must be granted.
THE § 2255 MOTION
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974). A court may grant relief from a
federal conviction or sentence pursuant to § 2255
“upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). The scope of relief
available under § 2255 is narrow, limited to “an
error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in
a complete miscarriage of justice.” Borre v. United
States, 940 F.2d 215, 217 (7th Cir. 1991) (internal
April 20, 2005, Horne was charged in a multi-count,
multi-defendant superseding indictment. In particular, Horne
was charged in Count One with Conspiracy to Interfere with
Commerce by Threats or Violence, in violation of 18 U.S.C.
§ 1951(a). The indictment alleged that Horne, along with
Joseph E. Rodgers (“Rodgers”) and Desmond
Alexander Johnson (“Johnson”), used the internet
to lure potential buyers of automobiles to Indianapolis,
Indiana. Horne would make arrangements to meet the potential
buyers and lead them to Rodgers and Johnson, who while
wielding firearms, robbed or attempted to rob these potential
buyers of their cash at gunpoint. Count Two charged Horne
with Interference with Commerce by Threats or Violence, in
violation of 18 U.S.C. § 1951(a) (also known as a Hobbs
Act robbery). Count Three charged Horne with Attempt to
Interfere with Commerce by Threats or Violence, in violation
of 18 U.S.C. §§ 2, 1951(a). Counts Four and Five
charged Horne with Brandishing a Firearm During a Crime of
Violence, in violation of 18 U.S.C. §§ 2,
21, 2005, Horne was convicted following a jury trial on
Counts One, Two, Three and Four, and was found not guilty of
Count Five. On October 7, 2005, Horne was sentenced to 112
months imprisonment on Counts One through Three, and 84
months on Count Four, to be served consecutively. Horne was
also ordered to pay restitution in the amount of $13, 265.00
and a special assessment of $400.00. On June 19, 2008, Horne
filed a pro se motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255, which was
denied on December 22, 2009. See Horne v. USA, No.
1:08-cv-00837-RLY-JMS, Dkt. 18.
2015, the United States Supreme Court in Johnson
held that the so-called residual clause of the Armed Career
Criminal Act (“ACCA”) was unconstitutionally
vague. Johnson v. United States, 135 S.Ct.
2551, 2563 (2015). The Seventh Circuit has summarized
Johnson's impact on the ACCA:
The [ACCA] . . . classifies as a violent felony any crime
that “is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another”.
The part of clause (ii) that begins “or otherwise
involves” is known as the residual clause.
Johnson holds that the residual clause is
Stanley v. United States, 827 F.3d 562, 564 (7th
Cir. 2016). Johnson's holding is a new rule of
constitutional law that the Supreme Court made retroactive in
Welch v. United States, 136 S.Ct. 1257 (2016).
See Holt v. United States, 843 F.3d 720, 722 (7th
22, 2016, Horne filed an application with the Seventh Circuit
seeking authorization to file a successive motion to vacate
under § 2255 limited to a claim under Johnson.
On Jun 23, 2016, the Seventh Circuit granted the application
and authorized this Court to consider Horne's
Johnson claim. Horne v. USA, No. 16-2608,
dkt. 2 (7th Cir. June 23, 2016).
seeks relief pursuant to § 2255 arguing that his §
924(c) conviction was predicated on a conspiracy to
commit a Hobbs Act robbery - and not the Hobbs Act robbery
itself - and because conspiracy does not qualify as a
“crime of violence” under the § 924(c)
residual clause, his § 924(c) conviction cannot be
constitutionally sustained. The United States argues that
Horne's § 924(c) conviction stemmed from Count Two,
the Hobbs Act robbery, and not Count One, the conspiracy. In
the alternative, the United States argues that a conspiracy
to commit a Hobbs Act robbery is a “crime of
violence.” In reply, Horne argues that in his
indictment, the United States chose to tie Count Four to
Count One (and not to Count Two), and is therefore bound to
Whether Horne's Count Four ...