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Hunter v. United States

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

August 23, 2018

STEVEN HUNTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

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

          Hon. William T. Lawrence, Judge

         For the 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.

         I. § 2255 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).

         II. Background

         On 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.” Id.

         Mr. 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 Circuit held:

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.

         On May 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).

         Mr. 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).

         In 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 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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