Wilder v. USA

Filing 1

OPINION AND ORDER denying Motion to Vacate (2255) as to Delta Wilder. The Clerk is ORDERED to DISMISS the civil action WITH PREJUDICE. Additionally, the Court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 8/4/17. (Copy mailed to pro se party)(kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
DELTA WILDER,
Defendant/Petitioner.

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NO. 2:09-CR-79
(2:16-CV-273)

OPINION AND ORDER
This matter is before the Court on the Motion to Vacate
Sentence Pursuant to 28 U.S.C. § 2255, filed by Delta Wilder on
June 24, 2016 (DE #359).

For the reasons set forth below, the

motion is DENIED.

BACKGROUND
On August 7, 2009, Delta Wilder (“Wilder”) was charged in a
superseding indictment with aggravated bank robbery in violation of
18 U.S.C. § 2113(d)(Count Two), two counts of bank robbery in
violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2 (Counts Three
and Five), and brandishing a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count Six).

He pled

guilty to Count Two (aggravated bank robbery) and Count Six
(brandishing a firearm during a crime of violence).

He was

sentenced to 24 months of incarceration on Count Two and 84 months
of incarceration on Count Six, to be served consecutively.

Wilder

did not file a direct appeal.
Wilder filed the instant motion pursuant to Johnson v. United
States, ___ U.S. ____, 135 S. Ct. 2551 (June 26, 2015).

The

Government filed its response brief on July 22, 2016. Wilder filed
a reply brief on August 25, 2016.

Accordingly, the motion is ripe

for adjudication.

DISCUSSION
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for “extraordinary situations.”
812, 816 (7th Cir. 1996).

Prewitt v. United States, 83 F.3d

In order to proceed on a habeas corpus

petition pursuant to 28 U.S.C. section 2255, a federal prisoner
must show that the district court sentenced him in violation of the
Constitution or laws of the United States, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.
A

section

2255

Id.
motion

is

recapitulation of a direct appeal.

neither

a

substitute

for

nor

Id.; Belford v. United States,

975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
result:
[T]here are three types of issues that a
section 2255 motion cannot raise: (1) issues
that were raised on direct appeal, absent a
showing
of
changed
circumstances;
(2)
nonconstitutional issues that could have been
but were not raised on direct appeal; and (3)
2

As a

constitutional issues that were not raised on
direct appeal, unless the section 2255
petitioner
demonstrates
cause
for
the
procedural default as well as actual prejudice
from the failure to appeal.
Belford, 975 F.2d at 313.

Additionally, aside from demonstrating

“cause” and “prejudice” from the failure to raise constitutional
errors

on

direct

appeal,

a

section

2255

petitioner

may

alternatively pursue such errors after demonstrating that the
district court’s refusal to consider the claims would lead to a
fundamental miscarriage of justice.

McCleese v. United States, 75

F.3d 1174, 1177 (7th Cir. 1996).
In Johnson, the Supreme Court of the United States analyzed
whether the residual clause of the Armed Career Criminal Act
(“ACCA”) is void for vagueness.
Ct. 2551 (2015).

Johnson v. United States, 135 S.

As Justice Scalia noted:

Under the Armed Career Criminal Act of 1984, a
defendant convicted of being a felon in
possession of a firearm faces more severe
punishment if he has three or more previous
convictions for a “violent felony,” a term
defined to include any felony that “involves
conduct that presents a serious potential risk
of physical injury to another.”
18 U.S.C.
§924(e)(2)(B).
We must decide whether this
part of the definition of a violent felony
survives the Constitution’s prohibition of
vague criminal laws.
Id. at 2555.

Ultimately, the Supreme Court held that “imposing an

increased sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution’s guarantee of due process.”
Id. at 2563. It therefore overruled its prior decision in Sykes v.
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United States, 131 S. Ct. 2267 (2011), and held that the residual
clause

of

the

definition

of

unconstitutionally vague.
Johnson

decision

collateral review.

is

violent

felony

in

the

ACCA

Johnson, 135 S. Ct. at 2563.

retroactive

on

both

direct

appeal

was
The
and

Price v. United States, 795 F.3d 731, 732 (7th

Cir. 2015).
The ACCA applies when a defendant has three convictions that
constitute a “violent felony” or a “serious drug offense.”
U.S.C. § 924(e)(1).

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Wilder was not sentenced under the ACCA.

Rather, he was sentenced under 18 U.S.C. 924(c), a provision that
defines “crime of violence” similarly to the definition of “violent
felony” found in the ACCA.

At the time the parties briefed the

instant motion, the Seventh Circuit Court of Appeals had not
determined

whether

the

holding

in

Johnson

extended

to

the

definition of “crime of violence” found in 18 U.S.C. § 924(c). The
Seventh Circuit has since determined that Johnson’s holding does
extend to 18 U.S.C. § 924(c). See United States v. Cardena, 842
F.3d 959, 996 (7th Cir. 2017)(“Accordingly, we hold that the
residual

clause

in

18

U.S.C.

§

924(c)(3)(B)

is

also

unconstitutionally vague.”).
Unfortunately for Wilder, he still cannot benefit from the
Court’s holding in Johnson.

The superceding indictment charged

Wilder with brandishing a firearm during the aggravated bank
robbery set forth in Count Two of the superseding indictment.

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Count Two charged him with aggravated bank robbery in violation of
18 U.S.C. § 2113(d).

In a decision issued after Johnson, the

Seventh Circuit Court of Appeals has held that:
[F]or the same reasons that robbery by
intimidation under § 2113(a) qualifies as a
crime of violence under § 924(c), so does
robbery by assault by a dangerous weapon or
device under § 2113(d). The victim’s fear of
bodily harm is necessarily fear of violent
physical force that is inherent in armed bank
robbery.
For these reasons, robbery by
intimidation under § 2113(a) and robbery by
assault by a dangerous weapon or device under
§ 2113(d) have as an element the use,
attempted use, or threatened use of physical
force against the person or proerty of another
and thus qualify as crimes of violence under §
924(c).
United States v. Armour, 840 F.3d 904, 909 (7th Cir. 2016).
In other words, the crime of violence that served as the basis
for Wilder’s conviction does not implicate the residual provision
of 924(c).

Since Johnson is inapplicable to Wilder, it does not

permit

to

him

bring

a

motion

under

section

2255

that

would

otherwise be untimely. See Stanley v. United States, 827 F.3d 562,
(7th Cir. 2016)(When a defendant’s “conviction is unaffected by
Johnson, 2255(f)(3) does not grant [the defendant] a fresh window
to file a collateral attack.”).

Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
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appealability
applicant.”

when

it

enters

a

final

order

adverse

to

the

A certificate of appealability may issue only if the

applicant “has made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2).

To make such a

showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
have been resolved in a different manner or that the issues
presented
further.”

were

adequate

to

deserve

encouragement

to

proceed

Slack v. McDaniel, 529 U.S. 473, 475 (U.S. 2000)

(internal quotation marks and citation omitted).

Wilder has not

stated any grounds for relief under section 2255.

The Court finds

no basis for a determination that reasonable jurists would find
this decision debatable or incorrect or that the issues deserve
encouragement to proceed further.

Therefore, a certificate of

appealability will not be issued.

CONCLUSION
For the reasons set forth above, the Motion to Vacate Sentence
Pursuant to 28 U.S.C. § 2255 (DE #359 is DENIED.

The Clerk is

ORDERED to DISMISS this civil action WITH PREJUDICE. Additionally,
the Court DECLINES to issue a certificate of appealability.

The

Clerk is FURTHER ORDERED to distribute a copy of this order to
Petitioner (Inmate Reg. No. 10296-027), Lee USP - US Penitentiary Inmate Mail/Parcels, P.C. Box 305, Jonesville, VA 24263, or to such
other more current address that may be on file for the Wilder.
DATED: August 4, 2017

/s/ RUDY LOZANO, Judge
United States District Court
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