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Newman v. United States

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

July 10, 2018

WILLIE NEWMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          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

          SARAH EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT

         A. Background

         In 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, 1:96-cr-00080-SEB-DKL-1.

         Mr. 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.

         Mr. 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.

         B. Standard

         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).

         C. Discussion

         Mr. 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.

         Mr. Newman's Johnson claim:

         In his 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.

         Mr. 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:

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 unconstitutionally vague.

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. ...


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