United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
The
Defendant, Jeremy Handshoe, pled guilty to two counts of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1), and is serving a term of
imprisonment of fifteen years, which is the statutorily
required minimum sentence under the Armed Career Criminal Act
(ACCA). The Defendant appealed his sentence, but the Seventh
Circuit affirmed his sentence, finding that his prior
convictions for Indiana burglary were qualifying convictions.
See United States v. Handshoe, 740 Fed.Appx. 104
(7th Cir. 2018). This matter is now before the Court on the
Defendant's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
[ECF No. 103], filed on November 19, 2018. The Defendant
asserts that his counsel, who acted both as trial counsel and
appellate counsel, rendered ineffective assistance because he
did not advance an argument that Amendment 798 to the
Sentencing Guidelines, which removed burglary as an
enumerated crime of violence under U.S.S.G. §
4B1.2(a)(2), renders his sentence under the ACCA invalid.
The
Government has filed a Response [ECF No. 106], arguing that
the Defendant's Motion should be summarily denied because
there is no merit to his claims of ineffective assistance of
counsel.
DISCUSSION
A.
Standard of Review
Section
2255 allows a person convicted of a federal crime to seek to
vacate, set aside, or correct his sentence. This relief is
available only in limited circumstances, such as where an
error is of jurisdictional or constitutional magnitude, or
where there has been an error of law that “constitutes
a fundamental defect which results in a complete miscarriage
of justice.” See Harris v. United States, 366
F.3d 593, 594 (7th Cir. 2004). Motions to vacate a conviction
or correct a sentence ask a court to grant an extraordinary
remedy to a person who has already had an opportunity of full
process. Kafo v. United States, 467 F.3d 1063, 1068
(7th Cir. 2006). A motion under § 2255 “is neither
a recapitulation of nor a substitute for a direct
appeal.” Olmstead v. United States, 55 F.3d
316, 319 (7th Cir. 1995). A court may deny a § 2255
motion without an evidentiary hearing if “the motion
and the files and records of the case conclusively show that
the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b).
In
seeking to prove that his counsel rendered ineffective
assistance, as the Defendant does here, he “bears a
heavy burden.” Jones v. Page, 76 F.3d 831, 840
(7th Cir. 1996) (citation omitted). To establish ineffective
assistance of counsel, a petitioner must show that: (1) his
attorney's performance “fell below an objective
standard of reasonableness, ” Strickland v.
Washington, 466 U.S. 668, 688 (1984); and (2) there is a
reasonable probability that “but for counsel's
unprofessional errors the result of the proceeding would have
been different, ” id. at 694. “A failure
to establish either prong results in a denial of the
ineffective assistance of counsel claim.” Rastafari
v. Anderson, 278 F.3d 673, 688 (7th Cir. 2002) (citation
omitted). If a defendant cannot establish one of the
Strickland prongs, the court need not consider the
other. Groves v. United States, 755 F.3d 588, 591
(7th Cir. 2014).
The
performance prong requires the Defendant to specifically
identify acts or omissions that form the basis of his claim
of ineffective assistance. Strickland, 466 U.S. at
690. Based on the totality of the circumstances, the Court
must then determine whether the identified acts and omissions
fall outside the range of professionally competent
assistance. Id. In assessing whether counsel's
deficiency caused prejudice, the question is whether it is
“reasonably likely” that the outcome would have
been different. Harrington v. Richter, 562 U.S. 86,
111 (2011) (quoting Strickland, 466 U.S. at 696).
“The likelihood of a different result must be
substantial, not just conceivable.” Id.
(citing Strickland, 466 U.S. at 693).
B.
ACCA and the Guidelines
A
violation of 18 U.S.C. § 922(g)(1) ordinarily carries a
maximum ten-year term of imprisonment. However, the ACCA, 18
U.S.C. § 924(e), requires a fifteen-year minimum
sentence be imposed for any defendant with three or more
prior convictions committed on occasions different from one
another that are a “serious drug offense” or a
“violent felony.” The term “violent
felony” includes “burglary.” 18 U.S.C.
§ 924(e)(2)(B)(ii). However, “a state's label
is not dispositive, ” so a conviction counts as
burglary only if it “meets a federal definition of
‘generic burglary.'” Smith v. United
States, 877 F.3d 720, 721 (7th Cir. 2017).
In
relation to his sentence, the Defendant, through counsel,
argued that he did not qualify for the ACCA's enhanced
penalties. He reasoned that Indiana burglary is not
“generic burglary” because it allows for
convictions based on breaking and entering outdoor fenced
areas. Although the Court originally agreed with this
rationale, on July 6, 2017, the Seventh Circuit issued an
opinion in United States v. Perry, 862 F.3d 620 (7th
Cir. 2017), that foreclosed the Defendant's argument. In
Perry, the court held that the inclusion of wholly
enclosed fenced areas did not take Indiana burglary outside
burglary's generic definition. Id. at 622-24.
Accordingly, the Defendant's Presentence Investigation
Report (PSR) was revised to show that the Defendant was an
Armed Career Criminal under the statute, and to calculate his
sentence under Guideline section 4B1.4.
The
Defendant filed additional pleadings objecting to the
PSR's conclusion and arguing that Perry was
wrongly decided. (See ECF Nos. 77, 79, 81, 91.) At
sentencing, the district court overruled the Defendant's
objections in light of Perry and United States
v. Foster, 877 F.3d 343 (7th Cir. 2017) (holding that
Perry covers both Indiana Class C and Indiana Class
B burglary). The Court then imposed the mandatory minimum
sentence of fifteen years. The Defendant, through the same
counsel who represented him during sentencing, unsuccessfully
advanced on direct appeal the same arguments regarding his
burglary convictions and armed career criminal status.
In the
present Motion attacking his sentence, the Defendant claims
that his counsel was ineffective because he was not aware
that Amendment 798 to the Guidelines, as well as U.S.S.G.
§ 4A1.2(e), dictated a different outcome regarding his
1997 and 2007 convictions for burglary of a dwelling. The
Defendant is mistaken. Neither Amendment 798 nor § 4A1.2
are pertinent to whether he qualifies for the fifteen-year
mandatory minimum set forth in 18 U.S.C. § 924(e).
Amendment
798 did indeed remove burglary as an enumerated offense that
would qualify as a predicate “crime of violence”
under the United States Sentencing Guidelines. This
“Career Offender Guideline” applies to a
defendant “ha[ving] at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1 (Career
Offender Guideline). Trial counsel did not mention §
4B1.1, or Amendment 798's changes to the definitions
applicable under § 4B1.2, because the Defendant's
PSR did not apply § 4B1.1 to calculate his guideline
range. The Career Offender Guideline only applies, in the
first instance, to a “crime of violence” or
“controlled substance offense.” See
U.S.S.G. § 4B1.1(a). The Defendant's conviction
under 18 U.S.C. § 922(g) is neither a crime of violence
nor a controlled substance offense. Rather, the enhancement
that was applied, § 4B1.4 (Armed Career Criminal), was
due to the application of 18 U.S.C. § 924(e).
Additionally, the age of the prior conviction under the ACCA
is irrelevant. See U.S.S.G. § 4B1.4,
Application Note 1 (describing some differences between the
Guideline section applicable to a defendant subject to an
enhanced sentence under 18 U.S.C. § 924(e) and ...