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Love v. United States

United States District Court, S.D. Indiana, Indianapolis Division

June 21, 2018

MARVIN LOVE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING A CERTIFICATE OF APPEALABILITY

          TANYA WALTON PRATT, JUDGE

         Petitioner 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.

         I. The § 2255 Motion

         A 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 citations omitted).

         II. Factual and Procedural History

         On 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).

         On 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.

         The 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.[1] Crim. Dkt. 31, p. 9. After applying the acceptance of responsibility adjustment, Love's final offense level was 21. Id.

         A 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.

         On June 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 (2015).

         III. Discussion

         Love 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.[2] 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 (2018).

         A. Claims Raised in Reply

         Love 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 ...


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