Washington v. USA

Filing 1

OPINION AND ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). 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 as outlined in order. Signed by Judge Rudy Lozano on 8/4/17. (Copy mailed as directed in Order). (nal)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,

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Plaintiff/Respondent,
vs.
BRIAN WASHINGTON,
Defendant/Petitioner.

NO. 2:13-CR-59
(2:16-CV-311)

OPINION AND ORDER
This matter is before the Court on the Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody, filed by Brian Washington on July 1, 2016 (DE
#50).

For the reasons set forth below, the motion is DENIED.

BACKGROUND
On

May

1,

2013,

Washington

was

charged

in

a

six

count

indictment with both possessing and distributing cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), two counts of
possessing firearms in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c), and two counts of dealing in
firearms

without

a

license

922(a)(1)(A) and 924(a)(1)(D).

in

violation

of

18

U.S.C.

§§

He pled guilty to Count One

(distribution of cocaine base) and Count Two (possessing a firearm

in furtherance of a drug trafficking crime) and was sentenced to 63
months of incarceration on Count One and 60 months of incarceration
on Count Two.
Washington did not file a direct appeal, but on February 9,
2015, he filed a motion requesting a reduction in his sentence
pursuant to 18 U.S.C. § 3582(c)(2) as a result of Amendment 782 to
the United States Sentencing Guidelines.

On July 13, 2015, this

Court reduced Washington’s sentence on Count One to 60 months. His
sentence on Count Two was unaffected by Amendment 782.
Approximately one year later, Washington filed the instant
motion seeking a further reduction in his sentence under Johnson v.
United States, ___ U.S. ____, 135 S. Ct. 2551 (June 26, 2015).
Government filed its response brief on July 26, 2016.
did not file a reply brief.

The

Washington

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

2

to collateral attack.
A

section

2255

Id.
motion

is

neither

recapitulation of a direct appeal.

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).

As a

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)
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 assessing Petitioner’s motion, the Court is mindful of the
well-settled

principle

that,

when

interpreting

a

pro

se

petitioner's complaint or section 2255 motion, district courts have
a “special responsibility” to construe such pleadings liberally.
Donald v. Cook Cnty. Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir.

3

1996); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a “pro se
complaint, ‘however inartfully pleaded’ must be held to ‘less
stringent standards than formal pleadings drafted by lawyers’”)
(quoting Haines v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe, 279
F.3d 742, 746 (9th Cir. 2002) (“pro se habeas petitioners are to be
afforded ‘the benefit of any doubt’”) (quoting Bretz v. Kelman, 773
F.2d 1026, 1027 n.1 (9th Cir. 1985)).

In other words:

The mandated liberal construction afforded to
pro se pleadings “means that if the court can
reasonably read the pleadings to state a valid
claim on which the [petitioner] could prevail,
it should do so despite the [petitioner's]
failure to cite proper legal authority, his
confusion of various legal theories, his poor
syntax and sentence construction, or his
unfamiliarity with pleading requirements.”
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas
petition from state court conviction) (alterations in original)
(quoting Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

On the other hand, “a district court should not ‘assume the role of
advocate for the pro se litigant’ and may ‘not rewrite a petition
to include claims that were never presented.’”

Id.

Here, the

Court assessed Washington’s claims with these guidelines in mind.
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
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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.
United States, 131 S. Ct. 2267 (2011), and held that the residual
clause

of

the

definition

unconstitutionally vague.
Johnson

decision

collateral review.

is

of

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).

18

Washington was not sentenced under the ACCA.

Rather, he was sentenced under 18 U.S.C. 924(c).

The Seventh

Circuit Court of Appeals, however, has determined that the holding
in Johnson extends to the definition of “crime of violence” found
in 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.”).
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Unfortunately for Washington, he still cannot benefit from the
Johnson decision.

Washington’s sentence is the result of being

charged with possession of a weapon during a drug trafficking
crime, not committing a crime of violence while possessing a
weapon.

Because

definition

of

Washington’s

crime

of

sentence

violence,

the

is

not

holding

based
in

on

Johnson

the
is

inapplicable. Since Johnson is inapplicable to Washington, it does
not permit him to 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
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

were

adequate

to

deserve
6

encouragement

to

proceed

further.”

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

(internal quotation marks and citation omitted).

Washington 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 Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (DE #57) are DENIED.
DISMISS this civil action WITH PREJUDICE.

The Clerk is ORDERED to
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. 12735-027), Lexington FMC - Federal Medical Center
- Inmate Mail/Parcels, P.C. Box 14500, Lexington, KY 40512, or to
such other more current address that may be on file for the
Washington.

DATED: August 4, 2017

/s/ RUDY LOZANO, Judge
United States District Court

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