Wilson v. USA

Filing 1

OPINION AND ORDER: The Court hereby DENIES the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [DE 136] and DECLINES to enter a certificate of appealability. Signed by Judge Joseph S Van Bokkelen on 05/13/2024. (Copy mailed to pro se party) (jdb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

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v.
MICHAEL J. WILSON,
Defendant.

CAUSE NO.: 2:16-CR-180-JVB-JEM

OPINION AND ORDER
This matter is before the Court on a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody [DE 136] filed by Defendant Michael J.
Wilson on June 29, 2023. The Government filed a response on August 22, 2023. 1 For the reasons
below, the Court denies Wilson’s motion.
PROCEDURAL BACKGROUND
Wilson was charged in a two-count superseding indictment with interfering with commerce
by threat or violence in violation of 18 U.S.C. §§ 2 and 1951 and using a firearm during and in
relation to a crime of violence in violation of 18 U.S.C. §§ 2 and 924(c). On August 9, 2017,
Wilson pled guilty to the § 924(c) charge (count 2) pursuant to a plea agreement. At the December
5, 2017 sentencing, the Court sentenced Wilson to 48 months on count 2, to be followed by three
years of supervised release. The Court also dismissed the § 1951 charge on the Government’s
motion. Judgment was entered December 11, 2017. No appeal followed.
On April 11, 2019, Wilson filed a short “Motion for Permission to File for Relief or Correct
Illegal Sentence and for Sentencing Reduction Under the First Step Act,” which the Court denied

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This is an amended response. The original response was filed one day earlier on August 21, 2023.

“without prejudice so that Defendant can file a proper § 2255 motion” on August 22, 2019. The
instant § 2255 motion eventually followed nearly four years later on June 29, 2023.
ANALYSIS
Title 28 section 2255(a) provides that a federal prisoner “claiming the right to be released
upon the ground that the sentence was imposed in violation of the Constitution or laws of the
United States . . . may move the court which imposed the sentence to vacate, set aside or correct
the sentence.” Relief under § 2255 is only appropriate for “an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which inherently results in a complete
miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre
v. United States, 940 F.2d 215, 217 (7th Cir. 1991)).
Wilson, citing Johnson v. United States, 576 U.S. 591 (2015), and United States v. Davis,
588 U.S. 445 (2019), argues that he should be granted relief under § 2255 because “924(c) was
deemed unconstitutionally vague.” He also states that Hobbs Act robbery was deemed not a crime
of violence and cannot serve as a predicate offense for a § 924(c) conviction.
The Government counters Wilson’s arguments, stating that Wilson’s motion is untimely,
is barred by his appeal waiver, is procedurally defaulted, and fails on the merits. The Court agrees
with the Government that Wilson’s motion must be denied.
A. Timeliness
The relevant statute provides that petitions under § 2255 must be filed within one year from
the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such governmental action;

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(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 or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
Wilson acknowledges that his judgment of conviction became final over one year ago and
asserts that the one-year statute of limitations for § 2255 motions does not bar his motion because
there was a change in the law, the count he pled guilty to “is unconstitutional,” and “[he] was not
aware of these changes until recently, [he] pursued the matter as soon as [he] was informed of the
changes.” (Mot. at 11, ECF No. 136).
Regarding subsection (f)(1), judgment was entered on December 11, 2017, and the period
in which Wilson could file an appeal ended sixty days later on February 9, 2018. See Fed. R. App.
P. 4(a)(1)(B). Accordingly, if (f)(1) is the latest of the § 2255(f) criteria, the one-year limitations
period expired in February 2019. Wilson does not argue the existence of a governmental
impediment under (f)(2) or newly discovered evidence under (f)(4). Wilson cites to two cases—
Johnson and Davis—and writes of a change in the law, which gives the appearance of trying to
make the motion timely under (f)(3), but the most recent of the two cases (Davis) was decided on
June 24, 2019, meaning that, even if Davis provides the starting date for the limitations period, the
time for filing a § 2255 motion ended well before June 29, 2023, when Wilson filed his motion.
The Government identifies United States v. Taylor, 142 S. Ct. 2015 (2022), which was decided
approximately one year before Wilson’s motion, but as the Government notes, Taylor is a case
about attempted Hobbs Act robbery as a § 924(c) predicate offense, not completed Hobbs Act
robbery. Wilson’s motion is untimely, and this provides adequate reason to deny Wilson’s motion.

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B. Waiver of Right to Collateral Review
In his plea agreement, Wilson waived his right to seek collateral review on any grounds
other than ineffective assistance of counsel. (Plea Agreement § 7.i., ECF No. 32). In general,
appellate waivers in plea agreements are enforceable. See, e.g., Solano v. United States, 812 F.3d
573, 577 (7th Cir. 2016) (finding a defendant may, in a plea agreement, waive his right to both
direct appeal and collateral attack). There are limited exceptions to the general enforceability of
appellate waivers, including
(1) a sentence based on constitutionally impermissible criteria, such as race; (2) a
sentence that exceeds the statutory maximum for the defendant’s particular crime;
(3) deprivation of some minimum of civilized procedure (such as if the parties
stipulated to trial by twelve orangutans); and (4) ineffective assistance of counsel
in negotiating the plea agreement.
United States v. Adkins, 743 F.3d 176, 192-93 (7th Cir. 2014) (internal quotation marks omitted)
(quoting United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005)). Wilson does not argue that
some defect in his waiver exists such that it should not be enforced. The Court, on its own review,
sees no barrier to enforceability and finds that Wilson’s waiver is enforceable. This basis provides
another ground on which to deny Wilson’s motion.
C. Other Arguments
Having identified two reasons to deny Wilson’s motion, either one of which alone would
provide sufficient grounds for the denial, the Court, in an exercise of judicial economy, declines
to analyze the remaining arguments presented for denying Wilson’s motion.
CERTIFICATE OF APPEALABILITY
Section 102 of the Anti-Terrorism and Effective Death Penalty Act provides that a
Certificate of Appealability may be issued only upon a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” is “a demonstration that . . .
includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the
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petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473 (2000). Wilson
has not made such a substantial showing, so the Court declines to enter a certificate of
appealability.
CONCLUSION
Therefore, the Court hereby DENIES the Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody [DE 136] and DECLINES to enter a
certificate of appealability.
SO ORDERED on May 13, 2024.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT

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