United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
JANE MAGNUS-STINSON, CHIEF JUDGE
Thomas Duncan seeks relief from his conviction and sentence
pursuant to 28 U.S.C. § 2255 arguing that his trial
counsel was ineffective and that his sentence is improper in
light of recent Supreme Court caselaw. For the reasons
explained in this Order, Duncan's motion for relief must
be denied and the action dismissed with
prejudice. In addition, the Court finds that
a certificate of appealability should not
The § 2255 Motion
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
Factual and Procedural Background
September 23, 2014, IMPD officers responded to a domestic
disturbance at a residence. United States v. Duncan,
1:15-cr-0009-JMS-DKL-1 (“Crim. Dkt.”) 44 & 9.
Duncan fled and was apprehended several blocks away.
Id. The victim advised the officers that prior to
their arrival, she and Duncan had gotten into an argument and
he had a gun in his hand and threatened to kill her.
Id. The officers executed a search warrant at the
residence where they located an Iver Johnson .380 caliber,
semi-automatic pistol and a Mossberg, 12 gauge, pump shotgun,
model 500. Id. On January 21, 2015, Duncan was
charged in a two-count Indictment for being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). Crim. Dkt. 12.
Specifically, he was charged in Count One of possessing an
Iver Johnson, .380 caliber, semi-automatic pistol, and Count
Two of possessing a Mossberg Model 500A, 12-gauge shotgun.
February 10, 2015, Duncan filed a Petition to Enter a Plea of
Guilty. Crim. Dkt. 27. On February 17, 2015, a plea agreement
was filed pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C). Crim. Dkt. 44. The next day, a plea hearing was
held where Duncan pleaded guilty to Count 1 of the Indictment
and agreed to a sentence of 15 years' imprisonment. Crim.
Dkt. 33. The Court accepted the plea and adjudged Duncan
28, 2015, an amended plea agreement was filed, and a new plea
hearing and sentencing was held. Id. at 44, 45. The
amended plea agreement was filed pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(B) and the parties agreed that
Duncan would plead guilty to Count 1 of the Indictment and
that the final determination of his sentence, including the
advisory sentencing guideline range, would be made by the
Court. Id. Dkt. 44. The government agreed to request
a sentence at the low end of the guideline range and Duncan
was free to ask for any sentence. Id.
was found to have a total offense level of 30 and a criminal
history category of VI with a Guideline range of imprisonment
of 180 to 210 months. Id. PSR & 67. Duncan's
prior criminal history consisted of six Indiana burglaries
and thus, he was found to be an armed career criminal and
subject to an enhanced sentence under 18 U.S.C. § 924(e)
(the “ACCA”). Id. && 33, 34, 36,
37, 38, 40. Duncan was sentenced to 144 months in prison to
be followed by four years of supervised release. Crim. Dkt.
now seeks relief pursuant to 28 U.S.C. § 2255. Duncan
filed his motion for relief on June 6, 2016. On July 15,
2016, he filed an amended motion for relief. Because he was
presenting a claim based on the Supreme Court decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), the
Court appointed the Indiana Federal Community Defender to
represent him, dkt. 4, and counsel later withdrew. Dkt. 11.
Duncan was then directed to either voluntarily dismiss his
motion for file a further brief in support. Dkt. 14. He filed
a supplemental motion and the United States was directed to
respond to it. Dkt. 16. After the United States filed a
response, it was directed to supplement its response. Dkt.
36. Duncan has replied and his motion is now ripe for ruling.
seeks relief pursuant to § 2255 arguing that his counsel
was ineffective and that, based on the Supreme Court's
decisions in Johnson v. United States, 135 S.Ct.
2551 (2015), and Mathis v. United States, 136 S.Ct.
2243 (2016), he should not have been sentenced under the
ACCA. In reply, he withdraws his arguments that his counsel
was ineffective. He also adds an argument under the First
Step Act of 2018 and asks that the Court consider his
personal accomplishments while incarcerated.
Johnson and Mathis
argues that the enhancement of his sentence under the ACCA is
improper under the Supreme Court ...