United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
I. THE 28 U.S.C. § 2255 MOTION
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT
1996, Mr. Newman was charged with a two-count indictment for
armed robbery in violation of 18 U.S.C. § 2113(a)(d)
(Count 1) and the use of a firearm during a crime of violence
in violation of 18 U.S.C. § 924(c) (Count 2). Dkt. 15-1,
p. 3. The United States filed an Information pursuant to 18
U.S.C. 3559(c) providing that Mr. Newman had been convicted
of two or more serious violent felonies. Dkt. 15-1, pp.
14-16. See United States v. Newman,
Newman's adjusted offense level was 20 for Count 1. Two
levels were added because the property of a financial
institution was taken. Five levels were added because a
firearm was brandished during the commission of the crime.
One level was added because the loss was more than $13,
598.00. This gave Mr. Newman a total offense level of 28.
Dkt. 15-1, pp. 4-5. Mr. Newman was determined to be a career
offender under the sentencing guidelines based on the
predicate convictions for armed bank robbery in 1977 and
armed robbery in 1985. Dkt. 15-1, pp. 8-9. This increased Mr.
Newman's offense level to 34. Dkt. 15-1, p. 5. Based on
an offense level of 34 and criminal history category of VI,
the guidelines range for Count 1 was 262 to 327 month.
Id. However, based on the Information filed by the
government, Mr. Newman was subject to a mandatory life
sentence pursuant to 18 U.S.C. § 3559(c). Dkt. 15, pp.
14-16. On August 28, 1997, Mr. Newman was sentenced to a term
of life imprisonment.
Newman filed a notice of appeal on August 28, 1997. On June
15, 1998, the Seventh Circuit affirmed his conviction and
sentence. United States v. Newman, 144 F.3d 531 (7th
Cir. 1998). The Seventh Circuit rejected Mr. Newman's
argument that he was sentenced incorrectly and found that
because he was sentenced to life imprisonment pursuant to 18
U.S.C. § 3559(c)(1) it rendered any other sentencing
determinations irrelevant. Id. at 543-44.
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
Newman filed his motion for relief pursuant to 28 U.S.C.
§ 2255 on June 22, 2016, based on Johnson v. United
States, 135 S.Ct. 2551 (2015). His counsel withdrew on
March 2, 2017, and Mr. Newman was directed to file a motion
to voluntarily dismiss this action or file a brief in support
of his motion for relief pursuant to § 2255. Mr. Newman
did neither. The respondent filed a brief in response on
October 12, 2017.
Newman's Johnson claim:
motion for relief pursuant to 28 U.S.C. § 2255, Mr.
Newman argues that he is no longer a career offender based on
the holding in Johnson because his armed bank
robbery and armed robbery convictions no longer qualify as
crimes of violence.
Newman is not entitled to relief under Johnson. The
Supreme Court in Johnson held that the so-called
residual clause of the Armed Career Criminal Act
(“ACCA”) was unconstitutionally vague. The
Seventh Circuit summarized Johnson's impact on
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. ...