United States District Court, S.D. Indiana, Indianapolis Division
CHARLES A. BROWN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
EVANS BARKER, JUDGE
Brown seeks relief from his sentence pursuant to 28 U.S.C.
§ 2255 arguing that he does not have sufficient prior
convictions to support the enhancement of his sentence under
the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e). For the reasons discussed below, Brown's motion
must be denied, and the action dismissed
with prejudice. In addition, the Court finds that a
certificate of appealability should not issue.
The § 2255 Motion
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). “Relief under this statute is available
only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a
fundamental defect has occurred which results in a complete
miscarriage of justice.” Blake v. United
States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citing
Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.
1996); Barnickel v. United States, 113 F.3d
704, 705 (7th Cir. 1997)).
Factual and Procedural Background
was found guilty by a jury of one count of being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). Because Brown had at least
three prior convictions that were “crimes of
violence” under § 4B1.4 of the United States
Sentencing Guidelines, he was considered to be a career
offender and his total offense level was 34. Based on a total
offense level of 34 and a criminal history category of VI,
Brown's guideline range of imprisonment was 262 to 327
months. Presentence Investigation Report “PSR”
¶ 73. Brown's prior criminal history consisted of
two convictions for criminal confinement, two Indiana
robberies, and one Indiana burglary. PSR at ¶¶
34-36. Brown was sentenced to 264 months' imprisonment.
Brown appealed his conviction and sentence, but the Seventh
Circuit affirmed his conviction and sentence. See United
States v. Brown, 214 Fed.Appx. 618 (7th Cir. 2007).
then filed a motion for post-conviction relief pursuant to 28
U.S.C. § 2255, claiming ineffective assistance of
counsel which was denied by this Court. See Brown v.
United States, No. 1:08-cv-0891-SEB-JMS. On June 23,
2016, the Seventh Circuit granted Brown permission to file a
successive motion to vacate under § 2255 to argue a
claim under Johnson v. United States, 135 S.Ct. 2551
(2015). See Brown v. United States, No. 16-2526 (7th
24, 2016, Brown, with counsel, filed a memorandum in support
of a § 2255 motion claiming that his criminal
confinement and robbery convictions no longer qualify as
violent felonies under Johnson. Dkt. 1. On June 8,
2017, Brown filed a supplemental § 2255 motion claiming
that his criminal confinement and burglary convictions do not
qualify as violent felonies and conceding that his Indiana
robberies at paragraphs 34 and 36 do count towards his ACCA
status pursuant to United States v. Duncan, 833 F.3d
751 (7th Cir. 2016). Dkt. 12. On February 26, 2018, the
United States filed a status report stating that the Seventh
Circuit held that Indiana Class C and Class B burglary
convictions as valid predicate offenses under §
924(e)(2)(B)(ii). See United States v. Perry, 862
F.3d 620, 624 (7th Cir. 2017); United States v.
Foster, 877 F.3d 343 (7th Cir. 2017); United States
v. Schmutte, 709 Fed.Appx. 375 (7th Cir. 2018)
March 8, 2018, Brown's counsel filed for a motion to
withdraw her appearance in this case. Dkt. 17. On March 15,
2018, the Court granted that motion and directed the United
States to respond to Brown's contentions that criminal
confinement does not qualify as a violent felony under
Johnson and that his robbery and criminal
confinement convictions at paragraph 34 of the PSR count as
only one qualifying conviction for ACCA purposes. Dkt. 18.
April 2, 2018, Brown filed a motion to amend or correct his
brief in support of § 2255 claiming that his robbery,
criminal confinement, and burglary count only as one
qualifying conviction as they occurred on the same occasion
and his firearm was possessed during residential entry which
is not a crime of violence, so it should not have enhanced
his criminal history category. Dkt. 20. The Court ordered the
United States to respond to Brown's amended motion. Dkt.
United States has responded to Brown's arguments and
Brown has replied.
argues that, after Johnson, his underlying
convictions are not sufficient to support enhancement of his
sentence under the ACCA and that his robbery and burglary
convictions count as only one conviction for purposes of
enhancement under the ACCA.
ACCA provides for a fifteen-year minimum sentence for a
person who has three previous convictions “for a
violent felony or a serious drug offense.” 18 U.S.C.
§ 924(e). Johnson considered §
924(e)(2)(B), which defines the term “violent
felony” as any of four specifically enumerated crimes
or any other crime that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” The Supreme Court found the above-quoted
portion of § 924(e)(2)(B)-commonly known as its
“residual clause”-unconstitutionally vague,
meaning that it “fails to give ordinary people fair
notice of the conduct it punishes.” Johnson,
135 S.Ct. at 2556. Therefore, the Court held that imposing a