TYLER v. USA

Filing 16

Entry Denying Motion for Relief Pursuant to 28 U.S.C. sec 2255 and Denying Certificate of Appealability - For the reasons explained in this Entry, the motion of Maurice Tyler for relief pursuant to 28 U.S.C. § 2255 must be denied and the acti on dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue. For the reasons explained above, Mr. Tyler has failed to show that he is entitled to the relief he seeks and that his motion for relief pursuant to § 2255 must be denied. Judgment consistent with this Entry shall now issue. The clerk shall docket this ruling in No. 1:97-cr-0006-JMS-DKL-1. The Court therefore denies a certificate of appealability. (Copy to Petitioner via U.S. Mail). Signed by Judge Jane Magnus-Stinson on 12/5/2018.(JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MAURICE L. TYLER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:16-cv-01575-JMS-MPB

Entry Denying Motion for Relief Pursuant to 28 U.S.C. ' 2255
and Denying Certificate of Appealability
For the reasons explained in this Entry, the motion of Maurice Tyler for relief pursuant to
28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court
finds that a certificate of appealability should not issue.
I. The § 2255 Motion
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “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.” 28 U.S.C.
§ 2255(a). The scope of relief available under § 2255 is narrow, limited to “an error of law that is
jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)
(internal citations omitted).

II. Discussion
Mr. Tyler was convicted on June 17, 1997, of being a felon in possession of a firearm, 18
U.S.C. § 922(g). Based on his prior convictions for burglary, battery, and attempted battery, he
was subject to an enhanced penalty under the Armed Career Criminal Act, 18 U.S.C. § 924(e),
(“ACCA”) which sets forth a minimum term of 15 years’ imprisonment for a felon-in-possession
with three prior violent felony or serious drug convictions. He was sentenced to 280 months’
imprisonment on March 4, 1998.
On June 26, 2015, the United States Supreme Court held that the “residual” clause of the
ACCA was unconstitutional based on vagueness. Johnson v. United States, 135 S.Ct. 2551 (2015).
Johnson was determined to announce a new substantive rule of constitutional law that applied
retroactively to ACCA defendants. Welch v. United States, 136 S.Ct. 1257 (2016). Thus, only prior
convictions that qualify as violent felonies under the “enumerated offenses” clause or “force”
clause of the ACCA can be used to enhance a sentence under that statute.
Mr. Tyler filed this motion for relief pursuant to § 2255 on June 22, 2016, arguing that,
under Johnson, his Indiana convictions for burglary, battery, and attempted battery with a deadly
weapon do not qualify as crimes of violence under the “enumerated offenses” clause or the “force”
clause of the ACCA and his sentence was therefore improperly enhanced. Dkt. 7. Mr. Tyler
requests to be resentenced without the ACCA enhancement. 1
Mr. Tyler’s argument that his Indiana conviction for burglary does not qualify as a crime
of violence after Johnson was foreclosed on when the Seventh Circuit decided United States v.

1

Counsel appeared for Mr. Tyler at the time his § 2255 motion was filed and was later permitted to
withdraw. Mr. Tyler was directed to voluntarily dismiss this action or file a brief in support of his § 2255
motion. He took neither action and the United States was directed to file a supplemental response to the
motion. Mr. Tyler’s motion for relief is now fully briefed.

Perry, 862 F.3d 620, (7th Cir. 2017). In Perry, the Seventh Circuit held that “Indiana burglary
convictions [a]re valid predicate offenses under § 924(e)(2)(B)(ii).” 862 F.3d at 624 (regarding
Class C burglary). Shortly thereafter, in United States v. Foster, the Seventh Circuit held that Perry
covers both Indiana Class C and Indiana Class B burglary. 877 F.3d 343 (7th Cir. 2017). The court
then summarized those holdings in United States v. Schmutte, 709 Fed. App’x 375 (7th Cir. Jan.
23, 2018) (unpublished). Under these holdings, Johnson does not apply to invalidate a sentence
enhancement based on an Indiana burglary conviction.
Mr. Tyler also contends that his battery conviction does not qualify as a crime of violence.
But the Seventh Circuit held in Douglas v. United States, 858 F.3d 1069, 1072 (7th Cir. 2017),
that battery under Indiana law does qualify as a crime of violence after Johnson. Similarly, his
attempted battery conviction qualifies as a crime of violence. 2 The Seventh Circuit has explained
Some offenders convicted of attempts to commit crimes of violence have argued
that their attempts should not be deemed crimes of violence because the substantial
step toward completion of the crime need not itself be a violent step. Such an
argument is difficult to square with the statutory language reaching an offense that
“has as an element the ... attempted use ... of physical force.” An attempt conviction
requires proof of intent to carry out all elements of the crime, including, for violent
offenses, threats or use of violence.
United States v. Armour, 840 F.3d 904, 909 n.3 (7th Cir. 2016), as amended (June 26, 2017).
In short, Mr. Tyler has three convictions that qualify as crimes of violence to enhance his
sentence under the ACCA. He has therefore failed to show that he is entitled to relief from his
sentence.

2

The United States asserts that Mr. Tyler’s 1993 battery conviction was for battery and not attempted
battery, while Mr. Tyler describes that conviction as attempted battery. Because, as discussed, attempted
battery qualifies as a crime of violence, this dispute is inconsequential.

III. Conclusion and Certificate of Appealability
For the reasons explained above, Mr. Tyler has failed to show that he is entitled to the relief
he seeks and that his motion for relief pursuant to § 2255 must be denied. Judgment consistent
with this Entry shall now issue. The clerk shall docket this ruling in No. 1:97-cr-0006-JMS-DKL1.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that Mr. Tyler has failed to show (1)
that reasonable jurists would find this court’s “assessment of the constitutional claims debatable
or wrong,” or (2) that reasonable jurists would find “it debatable whether the petition states a valid
claim of the denial of a constitutional right” and “whether [this court] was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of
appealability.
IT IS SO ORDERED.

Date: 12/5/2018

Distribution:
MAURICE L. TYLER
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