Stork v. United States of America

Filing 1

OPINION AND ORDER as to Frank E Stork: The Court DISMISSES Mr. Stork's motion to vacate his sentence under § 2255 DE 159 and DENIES his request for release from imprisonment pending the conclusion of any proceedings under § 2255. The Court also DENIES the issuance of a certificate of appealability on Mr. Stork's claim. The Clerk is DIRECTED to enter judgment accordingly in case numbers 3:10-CR-132 and 3:15-CV-389. The Court GRANTS Mr. Stork's motion for clarification D E 173 and Ms. Soble's motions for leave to file an amicus brief DE 175 and for leave to file that brief after the deadline DE 174 . Finally, the Court construes the amended petition filed by Ms. Soble DE 168 as a brief in support of Mr. Stork's petition instead of as an amended petition, and DIRECTS the Clerk to close case number 3:15-CV-435 as improvidently opened. Signed by Judge Jon E DeGuilio on 12/4/2015. (rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA
v.
FRANK E. STORK

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Case Nos. 3:10-CR-132
3:15-CV-389
3:15-CV-435

OPINION AND ORDER
Now before the Court is a motion by the defendant, Frank E. Stork, to vacate his sentence
pursuant to 28 U.S.C. § 2255. Mr. Stork was convicted of possessing a firearm and ammunition
as a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, Mr. Stork received an increased
base offense level under the Guidelines because he had two prior convictions for crimes of
violence. One of those two prior convictions was for resisting law enforcement in a vehicle,
which, consistent with the Supreme Court’s holding in Sykes, involves conduct that presents a
serious potential risk of physical injury to another, and thus satisfies the Guidelines’ residual
clause of the definition of crime of violence. Subsequently, in Johnson v. United States, 135 S.
Ct. 2551 (2015), the Supreme Court held that the same residual clause in the Armed Career
Criminal Act’s definition of “violent felony” was void for vagueness. Now, in his second motion
under § 2255, Mr. Stork claims that Johnson applies equally to the Guidelines and that, because
his advisory Guidelines range was increased based on a provision that is void for vagueness, he
was sentenced in violation of the Constitution and is entitled to collateral relief. For the
following reasons, the Court finds that Mr. Stork does not meet the statutory requirements for
filing a second or successive motion under § 2255, and thus dismisses his motion.
I. FACTUAL BACKGROUND
Mr. Stork was indicted by a federal grand jury on October 14, 2010. The indictment
charged Mr. Stork with knowingly possessing a firearm and ammunition, having previously been

convicted of a felony. [DE 1]. The charges arose out of a traffic stop of a car in which Mr. Stork
was a passenger. As an officer was standing by the driver’s side window, Mr. Stork reached
outside his own window and dropped a firearm magazine. Officers then removed Mr. Stork from
the vehicle, at which time two rounds of ammunition fell off of Mr. Stork’s lap. It was also
apparent that Mr. Stork had hastily tried to hide something in the center console as the officer
was approaching the car, and upon a search of the car, officers found a firearm hidden in that
area that matched the magazine and ammunition. Because Mr. Stork had multiple prior felony
convictions, he was arrested and charged with possessing a firearm and ammunition as a felon.
The case proceeded to a jury trial, at which Mr. Stork was convicted.
At sentencing, Mr. Stork received a base offense level of 24 under the Sentencing
Guidelines, pursuant to U.S.S.G. § 2K2.1(a)(2), which applies where “the defendant committed
any part of the instant offense subsequent to sustaining at least two felony convictions of either a
crime of violence or a controlled substance offense.” Mr. Stork had prior federal convictions
from 1998 for committing a violent crime in aid of racketeering activity and for using or carrying
a firearm during and in relation to a crime of violence. Those convictions constituted one crime
of violence for purposes of § 2K2.1(a)(2). Mr. Stork also had a conviction from 2007 for
resisting law enforcement in a vehicle, which is a felony under Indiana law. In Sykes v. United
States, 131 S. Ct. 2267, 2277 (2011), the Supreme Court held that that precise offense constituted
a violent felony under the residual clause of the Armed Career Criminal Act, which defines
violent felony, in part, as an offense that “involves conduct that presents a serious potential risk
of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Because the Guidelines contain an
identical residual clause in its definition of crime of violence, U.S.S.G. § 4B1.2(a)(2), the Court
overruled an objection by Mr. Stork and found that his 2007 conviction constituted a second

2

prior conviction for a crime of violence, so his base offense level became 24. Mr. Stork received
no other adjustments to his offense level, so his total offense level was 24. With his criminal
history score of 9, Mr. Stork fell in criminal history category IV, producing an advisory
sentencing range of 77 to 96 months of imprisonment. If Mr. Stork only had one prior conviction
for a crime of violence, his base offense level would have been 20, U.S.S.G. § 2K2.1(a)(4)(A),
which would have produced an advisory sentencing range of 51 to 63 months of imprisonment.
After considering the factors under 18 U.S.C. § 3553(a), the Court sentenced Mr. Stork to
82 months of imprisonment. Mr. Stork appealed, but the Seventh Circuit affirmed. United States
v. Stork, 487 F. App’x 295 (7th Cir. 2012). Mr. Stork filed a petition for a writ of certiorari, but
the Supreme Court dismissed that petition at Mr. Stork’s request on January 2, 2013, Stork v.
United States, 133 S. Ct. 831 (2013), at which point the judgment became final. In the meantime,
Mr. Stork had also filed a motion under 28 U.S.C. § 2255 to vacate his conviction, which this
Court stayed pending conclusion of Mr. Stork’s direct appeal. Once Mr. Stork’s conviction
became final, the Court addressed Mr. Stork’s motion under § 2255 on its merits, and denied the
motion. [DE 137]. Mr. Stork appealed from that judgment and sought a certificate of
appealability from the Seventh Circuit, but the Seventh Circuit denied that request. Stork v.
United States, No. 14-2530, doc. 9 (7th Cir. Nov. 18, 2014). Mr. Stork then sought permission
from the Seventh Circuit to file a second or successive motion under § 2255 to raise one of the
same issues raised in his first motion, and the Seventh Circuit denied that request, too. Stork v.
United States, No. 14-3648, doc. 4 (7th Cir. Dec. 11, 2014).
On June 26, 2015, the Supreme Court issued its decision in Johnson v. United States, 135
S. Ct. 2551 (2015). In Johnson, the Supreme Court overruled its prior decision in Sykes, and held
that the residual clause of the definition of violent felony in the Armed Career Criminal Act was

3

unconstitutionally vague. Johnson, 135 S. Ct. at 2563. Mr. Stork thereafter filed an application
pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization from the Seventh Circuit to file a
second or successive motion to vacate his sentence under § 2255, contending that the increase in
his base offense level under the Guidelines based on language that Johnson held was void for
vagueness meant that his sentence was imposed in violation of the Constitution. Citing its
decision in Price v. United States, 795 F.3d 731 (7th Cir. 2015), in which it held that Johnson
applies retroactively to cases on collateral review, the Seventh Circuit granted Mr. Stork’s
application and authorized this Court to consider Mr. Stork’s claim. The Seventh Circuit
concluded its order as follows: “We caution the district court that our review is necessarily
preliminary and limited to the conclusion that Stork has made a prima facie showing of a tenable
claim under Johnson. The district court must decide first whether Johnson applies to U.S.S.G.
§ 4B1.2(a)(2) (the residual clause of the career‐offender guideline) and, if so, whether Stork is
subject to the adjustment under the new rule.” [DE 157]; Stork v. United States, No. 15-2687,
2015 WL 5915990, at *1 (7th Cir. Aug. 13, 2015). Mr. Stork accordingly filed his second motion
under § 2255 before this Court, and also sought release pending resolution of his motion. [DE
159]. Those requests have been fully briefed, and are ripe for ruling.
II. PRELIMINARY MATTERS
Before turning to the merits of Mr. Stork’s petition, there are several preliminary matters
to address relative to Mr. Stork’s representation. Mr. Stork filed his § 2255 motion on August 24,
2015 on his own behalf. [DE 159]. Two days later, Matthew Soliday of the Federal Community
Defenders entered an appearance on behalf of Mr. Stork pursuant to General Order 2015-15,
which appointed the Federal Community Defender’s Office to represent any indigent defendant
in this district to determine whether that defendant may qualify for habeas relief in light of
Johnson. The Court therefore ordered Mr. Stork to state whether he wished to proceed pro se or
4

to be represented by Mr. Soliday in this matter. [DE 160]. Mr. Stork responded by requesting to
proceed pro se, so the Court granted Mr. Soliday’s motion to withdraw. [161, 163]. Shortly
thereafter, however, Jennifer Soble, also from the Federal Community Defender’s Office,
entered an appearance on Mr. Stork’s behalf, stating that she spoke to Mr. Stork and that he
asked her to represent him. Ms. Soble also filed what she titled as an amended petition, though
that filing states that it does not raise any new claims not presented in Mr. Stork’s initial petition.
Based on that filing, the clerk’s office opened a new civil case number for the amended petition,
case number 3:15-cv-435.
Given Mr. Stork’s conflicting requests, the Court again ordered Mr. Stork to confirm
whether he wished to proceed pro se or to be represented in this matter. In response, Mr. Stork
filed a Motion for Clarification [DE 173], in which he stated that he wished to proceed pro se,
but that he would like Ms. Soble to present her filings as supplemental briefs in support of his
petition. He also filed his own reply brief in support of his petition. Ms. Soble then filed a motion
for leave to file a brief in support of Mr. Stork’s petition as amicus curiae [DE 175], along with a
motion for leave to file that brief after the deadline previously set for her reply brief [DE 174]. In
the interests of justice and in order to allow the issues raised in Mr. Stork’s petition to be fully
presented and argued, the Court grants those motions, and has considered both Mr. Stork’s and
Ms. Soble’s filings. In addition, consistent with Mr. Stork’s request, the Court will construe Ms.
Soble’s amended petition [DE 168] as a supplemental brief in support of Mr. Stork’s petition,
rather than as an amended petition, so the Clerk is directed to close case number 3:15-cv-435 as
improvidently opened.1

1

In fact, since the filing was only an amended petition, not a new one, a new case need not have
been opened at all.
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III. STANDARD OF REVIEW
Section 2255(a) of Title 28 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, 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, may move the court which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief is
appropriate only 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). Further, a “Section 2255 motion is neither a
recapitulation of nor a substitute for a direct appeal.” Olmstead v. United States, 55 F.3d 316,
319 (7th Cir. 1995); Bousley v. United States, 523 U.S. 614, 621 (1998) (stating that habeas
review “will not be allowed to do service for an appeal”). Relief under § 2255 is extraordinary
because it seeks to reopen the criminal process to a person who has already had an opportunity of
full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v.
United States, 467 F.3d 1063, 1068 (7th Cir. 2006)).
IV. DISCUSSION
Mr. Stork’s sole claim in his second motion under § 2255 is that his sentence is unlawful
because his advisory Guidelines sentencing range was increased based on language that the
Supreme Court held in Johnson is unconstitutionally vague. Specifically, Mr. Stork claims that
his prior conviction for resisting law enforcement in a vehicle was improperly used to increase
his base offense level under U.S.S.G. § 2K2.1(a) because that conviction constituted a crime of
violence only under the residual clause of that term’s definition. There is no question that the
prior conviction qualified as a crime of violence only under the residual clause. Therefore, the
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two questions at issue in this matter, as summarized by the Seventh Circuit, are whether Johnson
also applies to the Guidelines, and if so, whether Mr. Stork’s sentence is subject to the
adjustment under the new rule.
As to the first question, both parties here agree that Johnson should apply to the
Guidelines, though it is not clear that the Court can or should hold that it does. The specific issue
under consideration in Johnson was whether the residual clause in the definition of “violent
felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), is unconstitutionally
vague. 135 S. Ct. at 2555. Johnson itself did not speak to whether the same clause in the
definition of “crime of violence” under the Guidelines is also unlawful,2 see id. at 2557, 2563
(holding that “imposing an increased sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution’s guarantee of due process” (emphasis added)), nor has
the Supreme Court ever addressed whether the Guidelines must comply with the Constitution’s
prohibition of vague criminal laws. Amicus, arguing on behalf of Mr. Stork, acknowledges that
the Seventh Circuit has previously held that the Guidelines are not subject to attack under the
vagueness doctrine, e.g., United States v. Tichenor, 683 F.3d 358, 364 (7th Cir. 2012) (“[W]e
have categorically held that ‘the Guidelines are not susceptible to attack under the vagueness
doctrine.’” (quoting United States v. Brierton, 165, F.3d 1133, 1139 (7th Cir. 1999))), but argues,
with agreement from the government, that Tichenor should be overruled.
However, while both parties are content to have Tichenor overruled, neither party has
offered any adequate explanation for why this Court does not remain bound to follow it until
such time as that happens. Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir.

2

Contrary to amicus’ suggestion, Johnson’s citation to Guidelines cases as part of its discussion
of the difficulty in applying the residual clause does not mean that its holding also applies to that
distinct context.
7

2004) (“Just as the court of appeals must follow decisions of the Supreme Court whether or not
we agree with them, so district judges must follow the decisions of this court whether or not they
agree.” (internal citations omitted)); see Saban v. U.S. Dep’t of Labor, 509 F.3d 376, 378 (7th
Cir. 2007) (noting that, as between the Supreme Court and lower courts, lower courts “are not to
anticipate the overruling of a Supreme Court decision, but are to consider themselves bound by it
until and unless the Court overrules it, however out of step with current trends in the relevant
case law the case may be”). Since Johnson, the Seventh Circuit has not been squarely presented
with the question of whether Johnson applies to the Guidelines, and thus has not yet taken the
parties up on their invitation to overrule Tichenor.
Amicus notes that, following Johnson, the Supreme Court vacated and remanded
decisions in cases involving vagueness challenges to the Guidelines so that those cases could be
reconsidered by the lower courts, which amicus interprets as signaling the Supreme Court’s
views on this issue. However, those “GVR” orders have no precedential effect and do not
constitute decisions on the merits. Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001) (stating that a
GVR order “was not a ‘final determination on the merits’”); Texas v. United States, 798 F.3d
1108, 1116 (D.C. Cir. 2015) (“[I]t is well-settled that a GVR has no precedential weight and does
not dictate how the lower court should rule on remand.”). Nor does the Supreme Court’s decision
in Peugh, which held that the Guidelines are subject to the Ex Post Facto Clause, overrule
Tichenor. The principles underlying the Ex Post Facto Clause are distinct from those underlying
the vagueness doctrine, so the conclusion that the Guidelines are subject to one does not mean
they are subject to the other. United States v. Matchett, No. 14-10396, 2015 WL 5515439, at *8
(11th Cir. Sept. 21, 2015) (“We also reject Matchett’s argument that because the Ex Post Facto
Clause applies to the advisory guidelines, the vagueness doctrine of the Due Process Clause must

8

also apply to them. The Supreme Court has articulated different tests to determine when these
doctrines apply.”). Perhaps Peugh’s reasoning will persuade the Seventh Circuit to change
course, but it cannot be said that Peugh overrules Tichenor. Amicus also notes that other circuits
have held that Johnson applies to the Guidelines. E.g., United States v. Goodwin, No. 13-1466,
2015 WL 5167789 (10th Cir. Sept. 4, 2015). But the Seventh Circuit has not done so, and those
other circuits cannot overturn the law of this circuit. Finally, the fact that the Seventh Circuit
interprets the Guidelines’ residual clause consistent with the Armed Career Criminal Act’s
residual clause is of no moment, either, as Johnson’s holding did not rest on an interpretation of
the residual clause, but on the application of a doctrine that the Seventh Circuit has expressly
held does not apply to the Guidelines.3
The Court need not, and does not, resolve that first question, though, because Mr. Stork is
not subject to adjustment under any new rule. To begin with the obvious, Mr. Stork is not subject
to adjustment under Johnson itself. The holding in Johnson was that “imposing an increased
sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s
guarantee of due process.” 135 S. Ct. at 2563 (emphasis added). Mr. Stork was not sentenced
under the Armed Career Criminal Act, which is codified at 18 U.S.C. § 924(e) and mandates a
minimum term of imprisonment of 15 years; he was sentenced under 18 U.S.C. § 924(a)(2)
(specifying the penalties for violations of 18 U.S.C. § 922(g)), which contains no residual clause,
and which permits a term of imprisonment of up to 10 years, both before and after Johnson.

3

As noted by amicus, several cases are currently pending before the Seventh Circuit in which the
parties are asking the court to overrule Tichenor. However, because that question is not
dispositive here, and in light of the limited time remaining on Mr. Stork’s sentence, the Court
does not believe that it is appropriate to stay its consideration of this matter pending the Seventh
Circuit’s eventual decisions in those cases.
9

In addition, to the extent that Johnson’s rule can be extended to hold that increasing a
defendant’s advisory sentencing range under the residual clause of the Guidelines violates the
Constitution’s guarantee of due process, such a rule would not be retroactively applicable to
cases on collateral review. Thus, Mr. Stork is not subject to adjustment under that rule, either.
When the Supreme Court announces a new rule of constitutional law, “that rule applies to all
criminal cases still pending on direct review.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004)
(citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). However, under the framework initially
set forth in Teague v. Lane, 489 U.S. 288 (1989), the new rule applies to cases on collateral
review “only in limited circumstances.”4 Schriro, 542 U.S. at 351. If the new rule is
“substantive,” then it generally applies retroactively. Id.; Whorton v. Bockting, 549 U.S. 406, 416
(2007). Substantive rules include “decisions that narrow the scope of a criminal statute by
interpreting its terms” and “constitutional determinations that place particular conduct or persons
covered by the statute beyond the State’s power to punish.” Schriro, 542 U.S. at 351–52. Rules
that are “procedural,” though, generally do not apply retroactively, with the exception of
“‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding,” id. at 352 (quoting Saffle v. Parks, 494 U.S. 484, 494 (1990)), “without
which the likelihood of an accurate conviction is seriously diminished,” id. (quoting Teague, 489
U.S. at 313); see also Whorton, 549 U.S. at 417. This latter exception is “extremely narrow,” and
the Supreme Court has observed that it is “unlikely that any such rules have yet to emerge.”
Whorton, 549 U.S. at 417 (internal quotations and alterations omitted).

4

If a rule is not new, meaning it was in effect before the defendant’s judgment became final,
then it need not be retroactive in order to apply on collateral review, though in that event, a
defendant may also have hurdles such as procedural default to contend with. And because Mr.
Stork has already filed an unsuccessful motion under § 2255, he would be barred from raising a
claim based on an old rule in a second or successive motion. 28 U.S.C. § 2255(h)(2).
10

Here, the parties agree that the applicable rule is new, so in order for Mr. Stork to benefit
from it, it would have to be retroactively applicable on collateral review. The first step in that
analysis is to determine whether the new rule is substantive or procedural. “A rule is substantive
rather than procedural if it alters the range of conduct or the class of persons that the law
punishes.” Schriro, 542 U.S. at 353. “A decision that modifies the elements of an offense is
normally substantive rather than procedural. New elements alter the range of conduct the statute
punishes, rendering some formerly unlawful conduct lawful or vice versa.” Id. at 354. “In
contrast, rules that regulate only the manner of determining the defendant’s culpability are
procedural.” Id. at 353.
The new rule here, adapted from Johnson’s holding such that it would be relevant to Mr.
Stork, would be that the residual clause of the advisory Guidelines is void for vagueness. Under
that new rule, Mr. Stork would not receive the 4-level increase in his base offense level due to
his prior conviction for resisting law enforcement in a vehicle, so his advisory sentencing range
would be 51 to 63 months instead of 77 to 96 months. However, that new rule would not place
any conduct beyond the power of Congress to punish, nor would it narrow the scope of a
criminal statute such that it would carry a significant risk that Mr. Stork “stands convicted of an
act that the law does not make criminal or faces a punishment that the law cannot impose upon
him.” Schriro, 542 U.S. at 352. Mr. Stork would still be guilty of possessing a firearm as a felon,
his lawful range of imprisonment under the statute would still be 0 to 10 years, and the Court
could still impose the exact same term of 82 months of imprisonment that the Court imposed at
Mr. Stork’s first sentencing. The Court could even base that sentence in part on the facts that Mr.
Stork was previously convicted of resisting law enforcement in a vehicle and that such an
offense ordinarily involves conduct that presents a serious potential risk of physical injury to

11

another, even if those facts were not accounted for in Mr. Stork’s offense level under the
Guidelines. 18 U.S.C. § 3553(a)(1), (2)(C). Thus, Mr. Stork cannot argue that he “faces a
punishment that the law cannot impose upon him.” At most, he can argue that en route to
imposing a lawful sentence, the Court used an improper procedure by considering an unlawfully
vague Guideline. And while the Guidelines, though advisory, are undoubtedly influential,
“procedural” is not synonymous with “harmless,” so the possibility that a new rule pertaining to
the calculation of the Guidelines range would affect a defendant’s sentence does not make the
rule substantive. See Schriro, 542 U.S. at 352.
Moreover, the Seventh Circuit expressly held in Hawkins v. United States, 724 F.3d 915,
917–18 (7th Cir. 2013) that “errors in applying the advisory guidelines are procedural,” meaning
that “cases reinterpreting the advisory guidelines . . . don’t have retroactive application.”5 The
court based this conclusion in part on the fact that the Supreme Court has referred to a failure to
calculate the correct Guidelines range as a “‘procedural error.’” Id. (quoting Peugh, 133 S. Ct. at
2083). It also noted that Schriro’s description of a procedural error as one that “‘merely raises
the possibility that someone convicted with use of the invalidated procedure might have been
acquitted otherwise’” is “an exact description” of a rule altering the calculation of an advisory
Guidelines range. Id. at 917; see also United States v. Vela, 740 F.3d 1150, 1154 (7th Cir. 2014)
(“Peugh concluded that ‘failing to calculate the correct Guidelines range constitutes procedural
error,’ 133 S. Ct. at 2083, the kind which are generally not applied retroactively.”). Therefore,
the Court finds that the new rule at issue here would be a procedural rule.

5

Given that language, the Court rejects amicus’ argument that Hawkins’ holding rested solely on
the cognizability of the claim (which is not at issue here, as constitutional claims are cognizable
on collateral review), and that Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011) (addressing
a Guidelines error under the mandatory Guidelines) still controls the retroactivity analysis for
claims under both the mandatory and advisory Guidelines sentencing regimes.
12

Since the rule here is procedural, it would have to constitute a watershed rule of criminal
procedure in order to apply retroactively. Clearly, that is not the case. Applying the vagueness
doctrine to the Guidelines would not “‘alter our understanding of the bedrock procedural
elements essential to the fairness of a proceeding,’” nor is such a rule “necessary to prevent ‘an
impermissibly large risk’ of an inaccurate conviction.” Whorton, 549 U.S. at 418 (quoting
Schriro, 542 U.S. at 356). The only example that the Supreme Court has ever given of a rule that
would meet this standard is Gideon v. Wainwright, 372 U.S. 335 (1963), in which it held that
indigent defendants charged with felonies are entitled to appointment of counsel. The new rule
here would not compare to that holding, and neither party contends otherwise. Therefore,
because a new rule invalidating the residual clause of the Guidelines would be neither a
substantive rule nor a watershed rule of criminal procedure, it would not apply retroactively to
cases on collateral review, and thus offers Mr. Stork no relief.
Amicus attempts to short-circuit this analysis and side-step the effect of the advisory
Guidelines by arguing that since the Seventh Circuit has held that Johnson is retroactive, it must
also be retroactive in all contexts, including as to Mr. Stork, even though he was not sentenced
under the Armed Career Criminal Act or under a mandatory Guidelines sentencing range.
Amicus argues that the government’s argument to the contrary—that Johnson’s new rule is not
retroactive when it only affects a defendant through the calculation of their advisory Guidelines
sentencing range—is a novel “as applied” approach to retroactivity. However, the Court sees
nothing novel about the idea that a retroactive rule must actually apply to a defendant in order to
vacate that defendant’s sentence under § 2255, or that the retroactivity analysis should be
conducted against the rule that actually applies to the defendant.

13

The new rule in Johnson was that the residual clause of the Armed Career Criminal Act is
void for vagueness. 135 S. Ct. at 2563. That rule was retroactive per Price’s logic because it
narrowed the scope of the Armed Career Criminal Act, which increases the statutory penalties to
which a defendant is exposed. Price, 795 F.3d at 734. For example, in Price, the defendant was
sentenced to over 20 years of imprisonment due to the application of the Armed Career Criminal
Act and its mandatory minimum sentence of 15 years. Id. at 732. After Johnson, with the
residual clause excised from the Act, Price could be sentenced to no more than 10 years of
imprisonment, in which case his initial sentence would be unlawful. As just discussed, though,
that particular rule has no application to Mr. Stork’s case, as Mr. Stork was not sentenced under
the Armed Career Criminal Act, and no residual clause had any effect on his lawful range of
imprisonment. Johnson applies, if at all, by analogy, through which the resulting rule would be
that the residual clause of the Guidelines is void for vagueness. But as also just discussed, the
retroactivity analysis is quite different in that context.
Put another way, had Johnson addressed the residual clause of the Guidelines instead of
the Armed Career Criminal Act—in which case it would be directly on point here—and held that
the residual clause of the advisory Guidelines is void for vagueness, the new rule would not be
retroactive, for the reasons just discussed. Thus, amicus is essentially arguing that because a new
rule was announced in a distinct factual context in which it is retroactive, Mr. Stork should be in
a better position than he would be in had the rule been announced in a directly applicable case.
But for the Court to vacate Mr. Stork’s sentence on that basis, it would have to disregard either
the fact that the rule that was actually announced and that is retroactive does not apply to Mr.
Stork, or the fact that, insofar as Johnson’s logic applies to this context, the resulting rule would
not be retroactive and could not justify collateral relief.

14

In any event, the Seventh Circuit has expressly embraced what amicus disparages as the
“as applied” approach to retroactivity, holding that rules that are retroactive when they affect
statutory penalties or a mandatory Guidelines range are not retroactive as to defendants
sentenced under the post-Booker advisory Guidelines regime:
Now that we know that errors in applying the advisory guidelines are procedural,
cases reinterpreting the advisory guidelines—including Chambers v. United States,
555 U.S. 122, 129 S. Ct. 687, 172 L.Ed.2d 484 (2009), on which our petitioner
relies for his argument that his prior offense wasn’t a “violent felony”—don’t have
retroactive application either, though there may be exceptions (none applicable to
this case): Chambers may still be considered “substantive” when the pre-Chambers
understanding of “violent felony” resulted in a sentence that exceeded either the
statutory maximum under the Armed Career Criminal Act, Welch v. United States,
604 F.3d 408, 412 and n. 5 (7th Cir. 2010), or (as in Narvaez ) the guidelines range
when the guidelines were still mandatory. See also Brown v. Caraway, 719 F.3d
583, 586–88 (7th Cir. 2013).
Hawkins, 724 F.3d at 917–18. Accordingly, the Court rejects amicus’ argument that because
Johnson is retroactive as to defendants sentenced under the Armed Career Criminal Act, it is
necessarily retroactive when its logic is extended to defendants who would only be affected
through the calculation of their advisory Guidelines range.
Even if the Court were persuaded by Mr. Stork’s or amicus’ argument as to how the
principles of retroactivity should be applied to the applicable rule, however, Mr. Stork’s petition
would still fall short. Because this is a second or successive motion under § 2255, there is an
extra layer of analysis: Mr. Stork must also show that his claim relies on “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255(h)(2) (emphasis added); see also 28 U.S.C.
§ 2244(b)(4); Tyler v. Cain, 533 U.S. 656, 662–63 (2001). “Quite significantly, under this
provision, the Supreme Court is the only entity that can ‘make’ a new rule retroactive. The new
rule becomes retroactive, not by the decisions of the lower court or by the combined action of the
Supreme Court and the lower courts, but simply by the action of the Supreme Court.” Tyler, 533
15

U.S. at 663 (internal alteration omitted). As used in this context, “make” means “hold,” so a new
rule “is not ‘made retroactive to cases on collateral review’ unless the Supreme Court holds it to
be retroactive.” Id. “The Supreme Court does not ‘make’ a rule retroactive when it merely
establishes principles of retroactivity and leaves the application of those principles to lower
courts.” Id. (internal alteration omitted).
As explained by Justice O’Connor in her concurring opinion in Tyler, the “clearest
instance . . . in which [the Supreme Court] can be said to have ‘made’ a new rule retroactive is
where we expressly have held the new rule to be retroactive in a case on collateral review and
applied the rule to that case.” Id. at 668 (O’Connor, J., concurring). Absent such a direct holding,
the Supreme Court can also “make a rule retroactive over the course of two cases . . . if the
holdings in those cases necessarily dictate retroactivity of the new rule.” Id. at 666 (majority
opinion); see also id. at 668 (O’Connor, J., concurring) (“[A] single case that expressly holds a
rule to be retroactive is not a sine qua non for the satisfaction of this statutory provision. This
Court instead may ‘ma[k]e’ a new rule retroactive through multiple holdings that logically
dictate the retroactivity of the new rule.”). As Justice O’Connor’s concurrence explains, “[I]f we
hold in Case One that a particular type of rule applies retroactively to cases on collateral review
and hold in Case Two that a given rule is of that particular type, then it necessarily follows that
the given rule applies retroactively to cases on collateral review. In such circumstances, we can
be said to have ‘made’ the given rule retroactive to cases on collateral review.” Id. at 668–69
(O’Connor, J., concurring). However, the holdings of those cases must “dictate,” “by strict
logical necessity,” that the rule is retroactive, “and not merely provide principles from which one
may conclude that the rule applies retroactively.” Id. at 669–70.

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Here, the Supreme Court has never held that a rule invalidating a Guidelines provision as
void for vagueness is retroactive to cases on collateral review. Johnson itself was decided on
direct review, and the Supreme Court did not expressly hold that the new rule it announced
(much less its analog at issue here) was retroactive. Thus, for Mr. Stork to meet this standard, he
would have to show that, through two or more holdings, the Supreme Court has held that such a
rule is of a particular type that it has already held to be retroactive. He cannot make that showing
either, though. The Supreme Court has never held that a rule invalidating a Guidelines provision
under the vagueness doctrine (or any other doctrine) is substantive.6 For what it’s worth, the
Supreme Court repeatedly referred to the Guidelines as “procedural” in Peugh. 133 S. Ct. at
2080 (“Failure to calculate the correct Guidelines range constitutes procedural error, as does
treating the Guidelines as mandatory.”), 2083 (“Indeed, the rule that an incorrect Guidelines
calculation is procedural error ensures that they remain the starting point for every sentencing
calculation in the federal system.”); see also Hawkins, 724 F.3d at 917; Vela, 740 F.3d at 1154.
Though Peugh was not using that term in the context of a retroactivity analysis, the salient point
is that there is no Supreme Court holding that, by strict logical necessity, shows that the rule at
issue here falls in the category of substantive rules that the Supreme Court has already held to be
retroactive.
Likewise, the Supreme Court has never held that such a rule constitutes a watershed rule
of criminal procedure. Though it has provided Gideon as an example of a case that would meet
this standard, the Supreme Court has never held that any new rule constitutes a watershed rule of
criminal procedure, and it has noted that it is unlikely to ever do so. Whorton, 549 U.S. at 418

6

In fact, it has never even held that the Guidelines are subject to the vagueness doctrine in the
first place.
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(“[I]n the years since Teague, we have rejected every claim that a new rule satisfied the
requirements for watershed status.”). Therefore, absent such an express holding or holdings from
the Supreme Court, Mr. Stork cannot show that his claim relies on a new rule of constitutional
law that has been made retroactive to cases on collateral review “by the Supreme Court.”
The Seventh Circuit’s authorization for Mr. Stork to file a successive petition does not
mean that he has met this standard, either. The standard that a petitioner must meet upon
reaching the district court “differs from the one that applicants must satisfy in order to obtain
permission from a court of appeals to file a second or successive petition.” Tyler, 533 U.S. at 661
n.3. As the Supreme Court explained in Tyler, a court of appeals may authorize a successive
petition if “the applicant makes a ‘prima facie showing’ that the application satisfies the statutory
standard.” Id. “But to survive dismissal in district court, the applicant must actually ‘sho[w]’ that
the claim satisfies the standard.” Id. (alteration in original). Thus, as the Seventh Circuit stated in
Price after authorizing a successive petition, the district court “is authorized under § 2244(b)(4)
to dismiss any claim that it concludes upon closer examination does not satisfy the criteria for
authorization” of a successive petition. Price, 795 F.3d at 735; see also Tyler, 533 U.S. at 667
(“Because Tyler’s habeas application was his second, the District Court was required to dismiss
it unless Tyler showed that this Court already had made [the new rule] retroactive.”); Swanson v.
United States, No. 15-2776, doc. 5 (7th Cir. Sept. 4, 2015) (stating, in response to the
government’s argument that the court should not authorize a successive petition because Johnson
does not apply to the Guidelines and would not be retroactive if it did, that “[w]e believe each
contention would be better addressed by the district court after adversarial testing, which we lack
the time for given the 30-day deadline for deciding application”). Accordingly, because Mr.
Stork has not shown that he meets the criteria for filing a second or successive motion under

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§ 2255, the Court is required to dismiss Mr. Stork’s claim. 28 U.S.C. § 2244(b)(4) (“A district
court shall dismiss any claim presented in a second or successive application that the court of
appeals has authorized to be filed unless the applicant shows that the claim satisfies the
requirements of this section.”). Having resolved Mr. Stork’s claim on that basis, the Court does
not reach the government’s argument in the alternative that the claim is barred by procedural
default.
Finally, the Court denies Mr. Stork’s request for release pending any further proceedings
on this claim. While not expressly authorized under any statute, courts have the inherent
authority to release a defendant pending resolution of a habeas petition. Cherek v. United States,
767 F.2d 335, 337 (7th Cir. 1985). The Seventh Circuit has warned, though, that such authority
should “be exercised very sparingly.” Id. Thus, a prisoner seeking release pending the conclusion
of a habeas petition “must demonstrate ‘not only a substantial claim of law based on the facts
surrounding the petition but also the existence of some circumstance making the motion for bail
exceptional and deserving of special treatment in the interests of justice.’” Morgan v. Calderone,
No. 1:07-cv-763, 2008 WL 4858387, at *1 (S.D. Ind. Nov. 10, 2008) (quoting Dotson v. Clark,
900 F.2d 77, 79 (6th Cir. 1990)). As just discussed, the Court does not find that Mr. Stork has
presented a substantial claim such that he could receive any relief through his present motion.
Therefore, despite the limited amount of time remaining on Mr. Stork’s sentence, the Court does
not find that he should be released pending any further proceedings on his claim.
V. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United
States District Courts, the Court must “issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” A certificate of appealability may be issued “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c); Rule 11, Rules Governing Section 2255 Proceedings for the United States District
Courts. The substantial showing standard is met when “reasonable jurists could debate whether
(or, for that matter, agree that) the 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, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)); see Young v. United States, 523 F.3d 717 (7th Cir. 2008). A defendant is not required to
show that he will ultimately succeed on appeal. Miller-El v. Cockrell, 537 U.S. 322, 342 (2003)
(stating that the question is the “debatability of the underlying constitutional claim, not the
resolution of that debate”).
The Court declines to issue a certificate of appealability here. It is at least arguable
whether Johnson’s holding should apply to the Guidelines, and reasonable jurists could disagree
as to whether a vagueness challenge to the Guidelines should apply retroactively based on
existing principles of retroactivity. If this were Mr. Stork’s first § 2255 motion, in which case
those would be the operative questions, a certificate of appealability would be warranted.7 But as
discussed above, since this is Mr. Stork’s second motion under § 2255, he must show an
additional element, which is that the Supreme Court itself has held that a vagueness challenge to
the Guidelines applies retroactively to cases on collateral review. As to that issue, the Court does
not believe that any reasonable jurist could identify actual holdings of the Supreme Court that, by
strict logical necessity, dictate that any rule from which Mr. Stork could benefit has already been

7

The Seventh Circuit granted a certificate of appealability in Conrad v. United States, No. 143216, doc. 9 (7th Cir. Jan. 23, 2015), on a claim under Peugh (in the defendant’s first motion
under § 2255) that the Ex Post Facto Clause was violated when the defendant was sentenced
pursuant to the Guidelines in effect at the time of sentencing rather than the Guidelines in effect
at the time of the offense.
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held to be retroactive. Because that conclusion forecloses relief on Mr. Stork’s claim, a
certificate of appealability is not warranted.
The Court advises Mr. Stork that pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, when the district judge denies a certificate of appealability, the applicant may request
a circuit judge to issue the certificate. The Court further advises Mr. Stork that Rule 4(a) of the
Federal Rules of Appellate Procedure governs the time to appeal an order entered under the rules
governing § 2255 proceedings. See Rule 11(b), Rules Governing Section 2255 Proceedings for
the United States District Courts. Under Rule 4(a), when the United States is a party in a civil
case, any notice of appeal may be filed by any party within 60 days after the judgment or order
appealed from is entered. Fed. R. App. P. 4(a); Guyton v. United States, 453 F.3d 425, 427 (7th
Cir. 2006) (stating that “the time to contest the erroneous denial of [the defendant’s] first § 2255
motion was within 60 days of the decision”).
VI. CONCLUSION
Mr. Stork has failed to satisfy the requirements for filing a second or successive motion
under § 2255. Accordingly, the Court DISMISSES Mr. Stork’s motion to vacate his sentence
under § 2255 [DE 159] and DENIES his request for release from imprisonment pending the
conclusion of any proceedings under § 2255. The Court also DENIES the issuance of a
certificate of appealability on Mr. Stork’s claim. The Clerk is DIRECTED to enter judgment
accordingly in case numbers 3:10-CR-132 and 3:15-CV-389. The Court GRANTS Mr. Stork’s
motion for clarification [DE 173] and Ms. Soble’s motions for leave to file an amicus brief [DE
175] and for leave to file that brief after the deadline [DE 174]. Finally, the Court construes the
amended petition filed by Ms. Soble [DE 168] as a brief in support of Mr. Stork’s petition
instead of as an amended petition, and DIRECTS the Clerk to close case number 3:15-CV-435 as
improvidently opened.
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SO ORDERED.
ENTERED: December 4, 2015

/s/ JON E. DEGUILIO
Judge
United States District Court

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