Wilson v. USA

Filing 1

OPINION AND ORDER denying Motion to Vacate (2255) as to Michael Thomas Wilson. The Clerk is ORDERED to DISMISS this 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.
MICHAEL THOMAS WILSON,
Defendant/Petitioner.

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NO. 2:10-CR-28
(2:16-CV-369)

OPINION AND ORDER
This matter is before the Court on the letter filed by Michael
Thomas Wilson (“Wilson”) on June 23, 2016 (DE #55), and Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by
a Person in Federal Custody, filed by Wilson on August 15, 2016 (DE
#57).

For the reasons set forth below, the relief sought in both

the letter and motion is DENIED.

BACKGROUND
On March 4, 2010, Wilson was charged with two counts of
distribution of child pornography and one count of possession of
child pornography.

He pled guilty to all three counts and was

sentenced to 210 months of imprisonment for each of Counts One and
Two and 120 months of imprisonment on Count Three, to be served
concurrently.

Wilson did not file a direct appeal, but on June 23, 2016, he
filed a letter with this Court inquiring regarding his eligibility
for a sentence reduction under Johnson v. United States, ___ U.S.
____, 135 S. Ct. 2551 (June 26, 2015). This Court construed the
letter as a motion pursuant to 28 U.S.C. section 2255 and directed
Wilson to notify this Court whether he wished to withdraw the
instant petition or whether he wished to add any other arguments
for collateral relief on or before July 29, 2016. He was further
instructed to provide a memorandum accompanied with citations to
legal authority.
2255 motion.

In response, Wilson filed the instant section

The motion is not accompanied by a memorandum or

citation to any legal authority, but contains four separate grounds
for relief.
Wilson asks this Court to determine “whether the removal of
the residual clause by the United States Sentencing Commission on
January 8, 2016 applies to [his] case.”

(DE #57 at 4).

He further

seeks a determination regarding “whether Amendment 794 lowers [his]
base offense level.”

(Id.).

He claims that his trial counsel

provided ineffective assistance of counsel.

(Id.).

And, lastly,

he seeks a determination of whether his Sixth and Fifth Amendment
rights were violated at sentencing. (Id. at 5).

DISCUSSION
Habeas corpus relief under 28 U.S.C. section 2255 is reserved

2

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

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.

3

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.
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.’”

4

Id.

Here, the

Court assessed Wilson’s claims with these guidelines in mind.
Section 2255 contains a 1-year statute of limitations which
runs from the latest of:

(1) the date on which the judgment of

conviction becomes final; (2) the date on which an unlawful or
unconstitutional government-created impediment to filing has been
removed; (3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or (4) the date on which the facts
supporting the claim presented could have been discovered through
the exercise of due diligence.

28 U.S.C. § 2255(f); see also

United States v. Woods, 169 F.3d 1077, 1078 (7th Cir. 1999).
In this case, Wilson was sentenced on October 7, 2011, and the
Judgment and Commitment Order was entered on October 14, 2011.

He

had 14 days to file a notice of appeal, or until October 28, 2011.
Therefore, his conviction became final on October 28, 2011.

See

Clarke v. United Sates, 703 F.3d 1098, 1100 (7th Cir. 2013) (“the
sentence did not become final until the deadline for filing a
notice of appeal expired.”). The instant letter, construed by this
Court as a section 2255 motion, was not filed until June 23, 2016,
more than four years after his judgment became final.

Wilson does

not argue that government action prevented him from filing a timely
petition.

Wilson

also

does

not

argue

that

there

are

facts

supporting his claims that could not have been discovered earlier

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through the exercise of due diligence.
Accordingly, Wilson’s claim may only proceed if filed within
one year of the date on which the right he is asserting was
initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review. Wilson’s letter inquired
about whether the Supreme Court’s decision in Johnson v. United
States, ___ U.S. ____, 35 S. Ct. 2551 (June 26, 2015), was
applicable to him.

If Johnson is applicable to Wilson, then his

2255 motion would be timely, at least as to the Johnson claim.
Unfortunately for Wilson, it does not.
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.”
6

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

is

collateral review.

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).

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Wilson was not sentenced as an armed career

criminal under the ACCA or the Guidelines.

The Court’s ruling in

Johnson is inapplicable to Wilson and does not permit Wilson 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.”).
Even if Wilson’s motion were timely, his claims would face
other hurdles.

Wilson entered into a plea agreement with a waiver

provision, and each of the claims asserted here fall within that
waiver, as more fully explained in the Government’s response brief.
(DE #59 at 8-15).
Furthermore, the claims lack merit.

Amendment 794 altered a

guideline provision that was not relied upon in sentencing Wilson.

7

Additionally,

Amendment

794

is

not

retroactive

on

collateral

review. See Attaway v. United States, No. 16-cv-01047-JPG, 2016 WL
5118836 (Sept. 21, 2016).
His claims that Attorney Clark Holesinger (“Holesinger”) was
ineffective are vague and conclusory.

While Holesinger is now

incarcerated himself, the mere fact of his incarceration does not
support a claim of ineffective assistance of counsel.

Wilson also

alleges

testify

that

Holesinger

instructed

him

not

to

at

sentencing, but he provides no details whatsoever and does not
explain how he was prejudiced by Holesinger’s alleged instruction
that he not testify at sentencing.
Wilson’s final argument is that his Fifth and Sixth Amendment
rights were violated.
conviction

violates

the

More specifically, he argues that his
double

jeopardy

clause.

The

Double

Jeopardy clause of the Fifth Amendment provides that no person shall
be twice put in jeopardy of life or limb for the same offense. U.S.
Const. amend V.

Wilson does not explain why he believes the double

jeopardy clause was violated.

He was convicted of distributing

child pornography on two separate occasions and

possessing child

pornography on a third occasion. His convictions do not violate the
double jeopardy clause.

Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255

8

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

further.”

adequate

to

deserve

encouragement

to

proceed

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

(internal quotation marks and citation omitted).
For the reasons set forth above, Wilson has not stated any
grounds for relief under section 2255.
for

a

determination

decision

debatable

that
or

reasonable

incorrect

encouragement to proceed further.

or

The Court finds no basis
jurists
that

the

would

find

issues

this

deserve

Therefore, a certificate of

appealability will not be issued.

CONCLUSION
For the reasons set forth above, the relief sought in the
letter filed on June 23, 2016 (DE #55), construed by this Court as
a motion pursuant to § 2255, and Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (DE #57) are DENIED.

The Clerk is ORDERED to DISMISS this
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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.
10610-027), Petersburg FCI - 1000 - Low, Federal Correctional
Institution, Inmate Mail/Parcels, P.C. Box 1000, Petersburg, VA
23804, or to such other more current address that may be on file
for the Petitioner.

DATED: August 4, 2017

/s/ RUDY LOZANO, Judge
United States District Court

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