United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255, DENYING MOTION FOR COUNSEL, AND DENYING A
CERTIFICATE OF APPEALABILITY
William T. Lawrence, Judge
reasons explained in this Entry, the motion of Steven Hunter
for relief pursuant to 28 U.S.C. § 2255 must be
denied and this action dismissed
with prejudice. In addition, the Court finds that a
certificate of appealability should not issue.
§ 2255 Standard
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
March 24, 2010, after a jury trial, Mr. Hunter was convicted
in the United States District Court for the Southern District
of Indiana of possessing ammunition and a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
USA v. Hunter, No. 1:09-cr-00124-WTL-KPF-1
(hereinafter “Crim. Dkt.”), Dkt. No. 105 (S.D.
Ind. March 24, 2010). The Court concluded that he was subject
to the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), based on five Indiana robbery
convictions and one Indiana criminal confinement conviction,
all of which arose from a bank robbery and a one-day crime
spree. United States v. Hunter, 418 Fed.Appx. 490,
492 (7th Cir. 2011) (citing Hunter v. Clark, 906
F.2d 302, 303 (7th Cir. 1990)). The Court “calculated a
guidelines imprisonment range of 262 to 327 months, and
sentenced Hunter below that range to 216 months.”
Hunter appealed his conviction and sentence, although his
attorney later filed a motion to withdraw, asserting that the
appeal was frivolous pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). Id. The
Seventh Circuit found that (1) the district court
appropriately merged the two counts for possession of a
firearm and ammunition instead of granting Mr. Hunter's
pretrial motion to dismiss the indictment as multiplicitious;
(2) the district court did not err in allowing the
prosecutor's cross-examination of Mr. Hunter regarding
his prior felony convictions; (3) the district court did not
commit reversible error in refusing to instruct the jury on
the defensive theory of necessity; and (4) the district court
did not err in sentencing Mr. Hunter as an armed career
criminal. Id. at 492-94. As to the last issue, the
Seventh Circuit held that Mr. Hunter's argument that his
underlying felony convictions were “committed on
occasions different from one another” was frivolous
because “although the crimes occurred on the same day,
Hunter actually robbed five different victims, at different
times, in different locations.” Id. at 493-94.
The Seventh Circuit concluded that “the underlying
crimes were not simultaneous, but instead sequential, and
that Hunter had ample time to withdraw from his crime spree
before each successive crime.” Id. at 494. The
Seventh Circuit also discussed whether the district court
erred by “relying on the description of the crime spree
in the presentence report.” Id. The Seventh
When seeking to classify a prior conviction, the sentencing
judge is limited to the terms of the charging document, the
terms of a plea agreement or transcript or colloquy between
judge and defendant, or to some comparable judicial record of
the information, and generally must not consider the
particular facts disclosed by the record of conviction.
See James v. United States, 550 U.S. 192, 202
(2007); Shepard v. United States, 544 U.S. 13, 17
(2005). When determining whether prior offenses were
committed on “different occasions” under §
924(e), though, courts may rely on undisputed sections of the
presentence report. See United States v. Harris, 447
F.3d 1300, 1305-06 (10th Cir. 2006); United States v.
Thompson, 421 F.3d 278, 285 (4th Cir. 2005). Therefore,
Hunter's challenge would be frivolous. And in any event,
if challenged, we would take judicial notice of the details
of the crime spree reflected in prior judicial decisions, as
James and Shepard would permit: Hunter
v. Clark, 934 F.2d 856, 858 (7th Cir. 1991); Hunter
v. Clark, 906 F.2d 302, 303 (7th Cir. 1990); Hunter
v. State, 656 N.E.2d 875, 876 (Ind. App. 1995).
Id. at 494.
8, 2012, Mr. Hunter filed a motion to vacate, set aside, or
correct his conviction and sentence pursuant to 28 U.S.C.
§ 2255, alleging, among other issues, that he was
erroneously sentenced as an armed career criminal. Crim. Dkt.
171; see also Hunter v. USA, 1:12-cv-00621-WTL-DKL
(S.D. Ind.). The Court denied his motion, including his armed
career claim, explaining that “[t]his challenge was
considered and rejected in Hunter's direct appeal and
need not be revisited.” Crim. Dkt. 173 at 9 (citing
Olmstead v. United States, 55 F.3d 316, 319 (7th
Cir. 1995). The Seventh Circuit denied his request for a
certificate of appealability. Hunter v. USA, No.
13-2255 (7th Cir. Feb. 10, 2014).
Hunter also challenged his armed criminal career designation
in two motions to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2). Crim Dkt. 159; Crim. Dkt. 175. The Seventh
Circuit affirmed the Court's denial of his first motion
to reduce his sentence. Crim. Dkt 172; Hunter v.
USA, No. 12-1221 (7th Cir. Mar. 21, 2013). The Seventh
Circuit summarily affirmed the Court's denial of second
motion to reduce his sentence. Crim. Dkt. 186; Hunter v.
USA, No. 14-1350 (7th Cir. Mar. 31, 2014).
2015, the Supreme Court in Johnson held that the
so-called residual clause of the 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. ...