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Duncan v. United States

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

June 5, 2019

THOMAS DUNCAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

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

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE

         Petitioner 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 issue.

         I. The § 2255 Motion

          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. Factual and Procedural Background

         On 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. Id.

         On 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 guilty. Id.

         On May 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.

         Duncan 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. 46.

         Duncan 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.

         III. Discussion

         Duncan 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.

         A. Johnson and Mathis

         Duncan argues that the enhancement of his sentence under the ACCA is improper under the Supreme Court ...


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