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Harrell v. United States

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

December 12, 2018

ANTHONY HARRELL, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

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

          SARAH EVANS BARKER, JUDGE

         For the reasons explained in this Entry, the motion of Anthony Harrell, Jr., for relief pursuant to 28 U.S.C. § 2255 must be denied and the 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. Discussion

         On October 18, 2007, Mr. Harrell pleaded guilty to one count of bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d). Harrell v. United States, No. 1:07-cr-00138-SEB-DKL-1 (S.D. Ind.) (hereinafter, “Crim. Dkt.”), Dkt. 19, 20. As part of his plea agreement, Mr. Harrell stipulated that he was a career offender, his offense level under the Sentencing Guidelines was 31, and his prior criminal a history included convictions in Indiana for burglary and armed robbery. Based on a total offense level of 31 and a criminal history category of VI, Mr. Harrell's guideline range of imprisonment was 188 to 235 months. Mr. Harrell was sentenced to 188 months' imprisonment. Crim. Dkt. 33. Mr. Harrell did not appeal his conviction or sentence.

         On June 26, 2015, the United States Supreme Court held that the “residual” clause of the Armed Career Criminal Act (“ACCA”) was unconstitutional based on vagueness. Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson was determined to announce a new substantive rule of constitutional law that applied retroactively to ACCA defendants. Welch v. United States, 136 S.Ct. 1257 (2016). Thus, only prior convictions that qualify as violent felonies under the “enumerated offenses” clause or “force” clause of the ACCA (also known as the “elements clause”) can be used to enhance a sentence under that statute. In Mathis v. United States, 136 S.Ct. 2243 (2016), the Supreme Court discussed applying a modified categorical approach when analyzing whether past convictions are counted under the enumerated offenses clause of the ACCA. The career offender enhancement (§ 4B1.1) in the United States Sentencing Guidelines (U.S.S.G) contains language similar to the ACCA. The Sentencing Guidelines in effect at the time provided that a defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

         U.S.S.G. § 4B1.1(a). An offense qualified as a “crime of violence” if it was “punishable by imprisonment for a term exceeding one year” and it

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another; [known as the force or elements clause] or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives [known as the enumerated offenses clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the residual clause.]

U.S.S.G. § 4B1.2(a) (emphasis added).

         Mr. Harrell filed this motion for relief pursuant to § 2255 on June 21, 2016, arguing that, under Johnson, his Indiana convictions for armed bank robbery and burglary do not qualify as “crimes of violence” under the Sentencing Guidelines, and therefore he is no longer a career offender. Dkt. 1. On April 5, 2017, Mr. Harrell's counsel filed for a motion to withdraw her appearance in this case, which the Court granted. Dkt. 7.

         Mr. Harrell filed an amended § 2255 motion arguing that, under Mathis, his Indiana conviction for burglary does not qualify as “crimes of violence” under the Sentencing Guidelines, and therefore is no longer a career offender. Dkt. 24-1. Mr. Harrell attempts to distinguish prior precedent by arguing that Indiana burglary includes fenced-in areas, mobile homes, and fishing camps. See dkt. 24-1 at 13. Mr. Harrell also argues that his counsel provided ineffective assistance of counsel for failing to inform him of the penalty ...


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