Johnson v. USA

Filing 4

OPINION AND ORDER: Edward Johnson's Motion to Vacate under 28 U.S.C. § 2255 [DE 958] is DENIED. The Court DENIES the issuance of a certificate of appealability. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Chief Judge Jon E DeGuilio on 7/17/2020. (Copy mailed to pro se party via certified mail 7006 0100 0005 7120 4168)(rmc)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA
v.
EDWARD JOHNSON

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Case No. 3:02-cr-116-3-JD-APR
3:16-cv-427-JD

OPINION AND ORDER
This matter is before the Court on Edward Johnson’s Motion to Vacate under 28 U.S.C. §
2255 [DE 958]. The Petitioner argues that he was sentenced pursuant to a residual clause in
violation of Johnson v. United States, 135 S. Ct. 2551 (2015). For the reasons stated below, the
motion to vacate is DENIED.
I. BACKGROUND
On November 20, 2003, the Petitioner pleaded guilty to two counts of bank robbery that
resulted in death. See Plea Agreement, p. 3, DE 259. The statutory punishment was either life in
prison or the death penalty. See 18 U.S.C. § 2113(e). In exchange for his plea of guilt, the
Government agreed not to seek the death penalty. See Plea Agreement at 5. On December 21,
2004, the probation office prepared a presentence investigation report (PSR). Pursuant to
U.S.S.G. § 4A1.1(a), the probation office determined that the Petitioner had a criminal history
score of 9. See PSR ¶ 83. This included the Petitioner’s state convictions for robbery, burglary,
receiving stolen property, and illegally carrying a handgun. Id. ¶¶ 70, 79, 81. The Petitioner’s
total offense level was 45. Id. ¶ 65. The guideline range for the Petitioner was life in prison. Id. ¶
111.
On January 3, 2005, the Government filed a substantial assistance motion pursuant to
U.S.S.G. § 5K1.1. See Sealed Motion, DE 745. On January 14, 2005, the Court conducted a
sentencing hearing. See DE 756. The Court granted the Government’s substantial assistance

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motion. Id. Based upon this, the Court sentenced the Petitioner to 40 years imprisonment on each
count and ordered the sentences to run concurrently. Id. The Seventh Circuit affirmed the
Petitioner’s conviction and sentence. See United States v. Johnson, 139 F. App’x 755, 756 (7th
Cir. 2005).
On June 29, 2016, the Petitioner filed the instant Motion to Vacate under 28 U.S.C. §
2255 [DE 958]. The Petitioner argues that his sentence was enhanced under the residual clause of
the Armed Career Criminal Act, which the Supreme Court held was unconstitutionally vague in
Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). In response, the Government argues that
Johnson has no application in this case because the Petitioner was not sentenced under the
residual clause of the Armed Career Criminal Act. Compare 18 U.S.C. § 924(e)(2)(B)(ii), with
18 U.S.C. § 2113(e).
II. STANDARD OF REVIEW
28 U.S.C. § 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.” 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). 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)).

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III. DISCUSSION
The Petitioner argues that his sentence was enhanced under the residual clause of the
Armed Career Criminal Act, which the Supreme Court held was unconstitutionally vague in
Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). In response, the Government argues that
Johnson has no application in this case because the Petitioner was not sentenced under the
residual clause of the Armed Career Criminal Act. Rather, the Petitioner was sentenced for two
counts of bank robbery that resulted in death. Compare 18 U.S.C. § 924(e)(2)(B)(ii), with 18
U.S.C. § 2113(e). The Court agrees with the Government.
“Subsection 924(e), called the Armed Career Criminal Act, requires longer sentences for
persons convicted of three or more violent felonies or serious drug offenses.” Stanley v. United
States, 827 F.3d 562, 564 (7th Cir. 2016). In relevant part, the statute provides as follows:
(B) the term “violent felony” means any crime punishable by imprisonment for a term
exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another;
18 U.S.C. § 924(e)(2)(B) (emphasis added).
The emphasized portion of the statute is known as the residual clause. United States v.
Vivas-Ceja, 808 F.3d 719, 721 (7th Cir. 2015). In Johnson, 135 S. Ct. at 2257, the Supreme
Court concluded that the residual clause was unconstitutionally vague. Relying upon Johnson,

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the Petitioner argues that he was improperly sentenced pursuant to the residual clause of the
Armed Career Criminal Act.
However, the Petitioner’s reliance upon Johnson is misplaced. Specifically, the Petitioner
was sentenced pursuant to 18 U.S.C. § 2113(e) for two counts of bank robbery that resulted in
death. In relevant part, this statute provides as follows:
Whoever, in committing any offense defined in this section, or in avoiding or
attempting to avoid apprehension for the commission of such offense, or in freeing
himself or attempting to free himself from arrest or confinement for such offense, kills
any person, or forces any person to accompany him without the consent of such person,
shall be imprisoned not less than ten years, or if death results shall be punished by death
or life imprisonment.
18 U.S.C. § 2113(e) (emphasis added). Put simply, the Petitioner was not sentenced under the
Armed Career Criminal Act. Compare 18 U.S.C. § 924(e)(2)(B)(ii), with 18 U.S.C. § 2113(e).
Further, as seen above, 18 U.S.C. § 2113(e) does not contain any sort of residual clause that is
comparable to the Armed Career Criminal Act. Finally, the Petitioner was not classified as a
career offender under the residual clause of U.S.S.G. § 4B1.1. Instead, the PSR used the
Petitioner’s prior convictions to calculate his criminal history score under U.S.S.G. § 4A1.1(a). 1
See PSR ¶ 83. Therefore, Johnson has no bearing on the facts of this case. Accordingly, the
Petitioner’s argument is rejected on the merits.
IV. CERTIFICATE OF APPEALABILITY
The Court declines to issue a certificate of appealability. 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. § 2253(c)(2). The substantial showing standard is met if the

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It appears that the use of his prior state convictions to calculate his criminal history score under U.S.S.G. §
4A1.1(a) is what caused the Petitioner to believe that he was sentenced under a residual clause.

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issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel,
529 U.S. 473, 484 (2000). For the reasons stated above, the Court does not believe that the
resolution of this motion is debatable or that the issues deserve encouragement to proceed
further.
However, the Court advises the Petitioner 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. If the Petitioner wishes to appeal
this judgment, a notice of appeal must be filed within 60 days after the judgment is entered. Fed.
R. App. P. 4(a); Guyton v. United States, 453 F.3d 425, 427 (7th Cir. 2006).
V. CONCLUSION
For the reasons stated above, Edward Johnson’s Motion to Vacate under 28 U.S.C. §
2255 [DE 958] is DENIED. The Court DENIES the issuance of a certificate of appealability. The
Clerk of Court is DIRECTED to enter judgment accordingly. Finally, the Clerk of Court is
DIRECTED to file Edward Johnson’s Presentence Investigative Report under seal.
SO ORDERED.
ENTERED: July 17, 2020

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

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