Lewis v. USA

Filing 1

OPINION AND ORDER: The Court finds that Mr. Lewis is not entitled to relief on his claims, so it DENIES his motion under § 2255 (DE 143 in 3:11cr86). The Court also GRANTS the government's motion to dismiss the ineffective-assistance claim as untimely (DE 162 in 3:11cr86) and DENIES Mr. Lewis' motion for judgment on the pleadings as to timeliness (DE 163 in 3:11cr86), as Mr. Lewis has since received and responded to the government's filing. The Court also DENIES the issuance of a certificate of appealability. Signed by Judge Jon E DeGuilio on 7/31/2017. (Copy mailed to pro se party)(rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA
v.
OMAR LEWIS

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Case No. 3:11-CR-86 JD
3:16-CV-436

OPINION AND ORDER
Defendant Omar Lewis pled guilty to one count of possessing with the intent to distribute
crack cocaine. In his plea agreement, he entered a binding agreement to a term of 151 months of
imprisonment, and he agreed to waive his right to appeal or contest his conviction. In return, the
government agreed to dismiss the remaining counts of the indictment, which included additional
counts for distributing or possessing with the intent to distribute cocaine and crack cocaine, and
for possessing a firearm as a felon. Mr. Lewis’ two previous felony convictions for resisting law
enforcement in a vehicle constituted crimes of violence under the “residual clause” of the
Sentencing Guidelines, so Mr. Lewis qualified as a career offender, making his guideline range
151 to 188 months of imprisonment. At sentencing, the Court accepted the binding plea
agreement and imposed the agreed-upon sentence of 151 months of imprisonment. The Court
entered judgment on June 30, 2013, and Mr. Lewis did not appeal.
Three years later, in June 2016, Mr. Lewis moved to vacate his conviction and sentence
under 28 U.S.C. § 2255. Mr. Lewis first seeks relief under the Supreme Court’s holding in
Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the “residual clause” of the
Armed Career Criminal Act is void for vagueness. Though Mr. Lewis was not convicted under
the Armed Career Criminal Act, he argues that Johnson applies equally to the Sentencing
Guidelines, and that his two convictions for resisting arrest no longer constitute “crimes of
violence,” meaning his guideline range should not have been calculated under the career offender

guideline. However, the Supreme Court squarely rejected that argument in Beckles v. United
States, 137 S. Ct. 886 (2017). In Beckles, the Supreme Court held that the Sentencing Guidelines
are not subject to attack under the vagueness doctrine. Therefore, even though the Sentencing
Guidelines and the Armed Career Criminal Act share a similar “residual clause,” Johnson has no
effect on the Sentencing Guidelines. Mr. Lewis’ convictions for resisting arrest in a vehicle were
thus properly counted as crimes of violence under the Guidelines at the time of sentencing, and
Mr. Lewis was properly sentenced under the career offender guideline. Accordingly, Mr. Lewis
is not entitled to relief under Johnson. 1 And though the Guidelines have since been amended
such that resisting arrest in a vehicle would no longer constitute a crime of violence, that
amendment was not made retroactive, so it does not benefit Mr. Lewis.
Second, Mr. Lewis argues that his attorney rendered ineffective assistance in connection
with the negotiation of the plea agreement, specifically relative to the waiver of the right to
appeal or contest his conviction. Mr. Lewis primarily argues that his attorney failed to advise
him that the Supreme Court could reverse its own precedent, and that as a result, he agreed to
waive his right to appeal or contest his sentence because his challenge to his career-offender
status was foreclosed by then-existing Supreme Court law. Mr. Lewis first raises this argument
as a means of escaping the waiver so as to allow him to raise his Johnson claim, but as just
discussed, that claim fails on its merits, so this argument is not relevant in that respect.
Mr. Lewis also asserts this ineffective-assistance argument as a freestanding claim, and
he asks that his conviction be vacated for that reason. Thus construed, however, this claim is

1

This claim fails for other reasons as well, including that Mr. Lewis waived his right to contest
his conviction or sentence, and that his agreement to a binding term of imprisonment bars him
from challenging the length of the sentence. United States v. Gibson, 490 F.3d 604, 607 (7th Cir.
2007). The Court need not further discuss those issues, however, as this claim plainly fails even
on its merits.
2

untimely by about two years, and the government asks in its supplemental filing 2 that the Court
dismiss this claim on that basis. Section 2255 contains a one-year statute of limitations that runs
from any of several different dates. 28 U.S.C. § 2255(f). The first of those is “the date on which
the judgment of conviction becomes final.” Id. § 2255(f)(1). Judgment was entered on Mr.
Lewis’ conviction on June 30, 2013, and his conviction became final fourteen days later when
the deadline to appeal passed without action. Thus, Mr. Lewis had until July 14, 2014 to file his
motion under this deadline, but he did not do so until June 2016, making his motion almost two
years late as to this claim.
Another date that can trigger a new one-year limitations period under § 2255 is the date
the Supreme Court initially recognizes a new right that is retroactive to cases on collateral
review. § 2255(f)(3). Mr. Lewis argues that he filed his motion within one year of the Supreme
Court’s holding in Johnson. However, the timeliness of each claim in a motion under § 2255 is
evaluated separately, and Mr. Lewis’ ineffective-assistance claim does not arise under Johnson,
so he cannot invoke that deadline as to this claim. Davis v. United States, 817 F.3d 319, 327 (7th
Cir. 2016) (holding that “[t]o the extent [the defendant] is complaining of . . . his attorney’s
ineffectiveness with respect to the plea agreement, those claims were known to [him] at the time
his conviction became final,” so he had one year from that date to file that claim).
Finally, Mr. Lewis argues that the Supreme Court’s holding in Johnson is “newly
discovered evidence” that alerted him that his attorney never advised him that the Supreme Court
could overturn its own holdings. Thus, he argues that his motion was filed within one year of
“the date on which the facts supporting the claim or claims presented could have been discovered

2

The government initially failed to serve this filing on Mr. Lewis, but it has since corrected that
error and Mr. Lewis has responded to this filing.
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through the exercise of due diligence.” § 2255(f)(4). However, Mr. Lewis had all of the facts that
he needed to support this claim at the time of his sentencing: he knew that he waived his right to
appeal, and he knew what advice his attorney gave him or failed to give him. Accordingly, Mr.
Lewis’ ineffective-assistance claim is not timely under that deadline either, so the Court
dismisses this claim as untimely.
In addition, Mr. Lewis’ ineffective-assistance claim would fail even on its merits. Mr.
Lewis does not claim that his attorney gave him any incorrect advice, and he concedes that his
attorney correctly advised him that he qualified as a career offender given directly applicable
Supreme Court precedent then in effect. He complains only that his attorney did not additionally
volunteer that the Supreme Court can overturn its previous decisions. 3 However, an attorney who
accurately advises his client as to the effect of recent, binding precedent has competently
represented his client, and Mr. Lewis has offered no authority suggesting that the Constitution
requires attorneys to further note that the Supreme Court can—but rarely does—reverse itself.
See Fuller v. United States, 398 F.3d 644, 650 n.4 (7th Cir. 2005) (holding that an attorney is not
ineffective for “failing to anticipate” future Supreme Court holdings); Lilly v. Gilmore, 988 F.2d
783, 786 (7th Cir. 1993) (“The Sixth Amendment does not require counsel to forecast changes or
advances in the law.”). Thus, Mr. Lewis has failed to show that his attorney was constitutionally
ineffective.

3

Mr. Lewis also suggests that the binding effect of the plea agreement was unclear, but the
magistrate judge correctly advised Mr. Lewis at the change of plea hearing relative to the binding
term of imprisonment. Mr. Lewis was also well aware of that provision and its effect, as he even
pointed that provision out to the magistrate judge during the hearing. Moreover, the Court did
not accept either the plea of guilty or the plea agreement until the time of sentencing, by which
time the binding nature of the 151-month term had been thoroughly discussed. Mr. Lewis could
have withdrawn his plea for any reason or no reason up to that point, Fed. R. Crim. P. 11(d)(1),
but he did not do so, which further demonstrates that he understood exactly what he had agreed
to.
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Mr. Lewis has also failed to show prejudice. He does not dispute his guilt or suggest that
he would have proceeded to trial had his attorney given him the advice at issue. Instead, he
claims that he would have pled guilty without waiving his right to appeal or contest his
conviction, which he believes would allow him to now benefit from the Supreme Court’s holding
in Johnson. 4 As discussed above, however, Johnson is of no help to Mr. Lewis, since as the
Supreme Court held in Beckles, Johnson has no effect on the Sentencing Guidelines. Thus, even
if Mr. Lewis could appeal his sentence today, he would still lose under binding Supreme Court
precedent, as he was correctly sentenced as a career offender.
For those reasons, the Court finds that Mr. Lewis is not entitled to relief on his claims, so
it DENIES his motion under § 2255. [DE 143]. The Court also GRANTS the government’s
motion to dismiss the ineffective-assistance claim as untimely [DE 162] and DENIES Mr.
Lewis’ motion for judgment on the pleadings as to timeliness [DE 163], as Mr. Lewis has since
received and responded to the government’s filing. [DE 164, 165, 166].
The Court also DENIES the issuance of a certificate of appealability, as Mr. Lewis’s
claims are not sufficient to deserve encouragement to proceed further, and their resolution is not
debatable. The Court advises Mr. Lewis 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. Lewis that if
he wishes to appeal, he must file a notice of appeal within 60 days after the judgment or order

4

Even if Mr. Lewis had entered a blind plea without agreeing to a binding term of 151 months of
imprisonment, the Court would have imposed that same term. That term represented the low end
of the advisory guideline range, and Mr. Lewis’ excessive criminal history, including his 21
criminal history points, would have justified that same sentence. [DE 151 p. 16 (“In short, you
are a career offender in both the technical [sense] and the descriptive sense and that is a seriously
aggravating factor.”).
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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”).
SO ORDERED.
ENTERED: July 31, 2017

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

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