United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING A CERTIFICATE OF
WALTON PRATT, JUDGE
Marvin Love (“Love”) seeks resentencing pursuant
to 28 U.S.C. § 2255 on his conviction for being a felon
in possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g)(1). For the reasons explained below,
Love's motion for sentencing relief is
denied, and a certificate of appealability
is also denied.
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
Factual and Procedural History
August 19, 2015, Love was charged in a criminal complaint,
United States v. Marvin Love, No.
1:15-cr-178-TWP-MJD-1 (hereinafter “Crim. Dkt.”),
Crim. Dkt. 1 (S.D. Ind. August 19, 2015), with one count of
being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1).
December 21, 2015, with the assistance of appointed counsel,
Love filed a revised petition to enter a guilty plea and a
plea agreement. Crim. Dkt. 31. The plea agreement explained
that potential maximum penalty for the offense was a sentence
of 10 years' imprisonment, a $250, 000 fine, and 3
years' supervised release following any term of
imprisonment. Crim Dkt. 31, p. 2. Love's pela agreement
was governed by Federal Rule of Criminal Procedure
11(c)(1)(C) and parties agreed that Love would be sentenced
to a term of 57 months. The agreement also specified that the
imposition of a fine would be left to the discretion of the
Court. The parties agreed that they would reserve the right
to present evidence to the extent the Court imposed a term of
supervised release following a term of imprisonment.
Id., pp. 4-5. Finally, Love agreed that, if the
Court accepted the plea agreement and sentenced him in
accordance with the plea agreement, he waived his right to
appeal or otherwise challenge his conviction. Id.,
p. 10. He also agreed not to contest, or seek to modify, his
conviction or sentence or the manner in which either was
determined in any collateral attack, including an action
under 28 U.S.C. § 2255. Id.
parties stipulated that under the Sentencing Guidelines,
Love's base offense level was 24, pursuant to U.S.S.G.
§ 2K2.1(a)(2), because he possessed a firearm after
sustaining two felony convictions for crimes of
violence. Crim. Dkt. 31, p. 9. After applying the
acceptance of responsibility adjustment, Love's final
offense level was 21. Id.
sentencing hearing was held on January 15, 2016, at which
Love's plea of guilty was accepted. Crim. Dkt. 34. The
Court sentenced Love to 57 months' imprisonment with
three years of supervised release to follow his
incarceration. Crim. Dkt. 35. Judgment was entered on January
20, 2016. Crim. Dkt. 35.
22, 2018, Love filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 under
Johnson v. United States, 135 S.Ct. 2551, 2563
seeks relief pursuant to § 2255 arguing that his §
922(g)(1) conviction was predicated on robbery and because
robbery does not qualify as a “crime of violence,
” his § 922(g)(1) conviction cannot be
constitutionally sustained. In his supplemental briefing,
Love attempts to add a new argument regarding ineffective
assistance of counsel with respect to this
motion. The United States argues that Love is
barred from bringing a § 2255 motion by the collateral
relief waiver in his plea agreement. In the alternative, the
United States argues that Love was sentenced under the
Sentencing Guidelines and the guidelines are not subject to
vagueness pursuant to Beckles v. United States, 137
S.Ct. 886 (2017). In his reply, Love argues for the first
time that he is entitled to relief under the recent Supreme
Court decision Sessions v. Dimaya, 138 S.Ct. 1204
Claims Raised in Reply
raised a number of new claims for relief in his reply brief,
see dkt. 15, but these new arguments are waived.
See Griffin v. Bell, 694 F.3d 817, 822 (7th Cir.
2012) (“arguments raised for the first time in a reply
brief are deemed waived”); Hernandez v. Cook Cnty.
Sheriff's Office, 634 F.3d 906, 913 (7th Cir. 2011)
(same); United States v. Foster, 652 F.3d 776 n. 5
(7th Cir. 2001) (“The reply brief is not the
appropriate vehicle for ...