SKIDMORE v. USA

Filing 9

ORDER re 8 Stipulation filed by ROY ALLEN SKIDMORE. The Court agrees that Petitioner's previous sentence was unconstitutional and that a reduction is necessary pursuant to Johnson and Welch. The Court concludes that the parties' stipu lation is fair and just under the law and hereby GRANTS Petitioner's Motion pursuant to 28 U.S.C. § 2255. Petitioner shall be sentenced to 120 months of incarceration to be followed by a 3-year term of supervised release. A Judgment and Commitment in the associate criminal matter shall be forthcoming. Judgment consistent with this Order shall issue in this matter. This Order shall also be entered on the docket in the underlying criminal action, United States v. Skidmore, Cause No. 1:99-cr-00120-LJM-TAB-1. Signed by Judge Larry J. McKinney on 3/17/2017. Copy sent to USPO and USMS. (LDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROY SKIDMORE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:16-cv-01636-LJM-MJD

ORDER
Petitioner Roy Skidmore (“Petitioner”) and the United States of America (the
“Government”) have filed a stipulation regarding his motion for relief from the judgment in
Petitioner’s criminal matter, 1:99-cr-00120-LJM-TAB-1, pursuant to 28 U.S.C. § 2255,
Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct.
1257 (2016), and the United States Court of Appeals for the Seventh Circuit’s
authorization for Petitioner to file a second or successive motion pursuant to 28 U.S.C. §
2255(h), see United States v. Skidmore, 1:99-cr-00120-LJM-TAB-1, Dkt. No. 2.
Petitioner was convicted as a felon in possession under 18 U.S.C. § 922(g)(1). At
the time of sentencing, he was sentenced under the Armed Career Criminal Act, 18
U.S.C. § 924(e) (“ACCA”), to a term of 262 months to be followed by a five year term of
supervised release; a Judgment and Conviction was entered to that effect on June 22,
2000. The three predicate felonies giving rise to Petitioner’s status under the ACCA were:
(1) second degree burglary, armed robbery in Clark County, Indiana; (2) batter in
Delaware County, Indiana;; and (3) trafficking in controlled substances in Warren County,
Kentucky.

On June 26, 2015, the United States Supreme Court held the residual clause of
the ACCA unconstitutional. Johnson, 135 S. Ct. 2551. Subsequently, the U.S. Supreme
Court Seventh Circuit held that Johnson announced a new substantive rule of
constitutional law that the Supreme Court had categorically made retroactive. Welch, 136
S. Ct. at 1257. On June 23, 2016, the Seventh Circuit notified the Court that it had given
Petitioner permission to proceed with a second and/or successive motion under 28 U.S.C.
§ 2255.
By stipulation of the parties, pursuant to Johnson and Welch, only Petitioner’s
burglary and battery convictions survive as a violent felony under the ACCA. Dkt. No. 8,
¶ 4. Petitioner and the Government further stipulate that no other conviction qualifies as
a predicate conviction under 18 U.S.C. § 924(e). Id. Moreover, based on the underlying
facts of the case and this analysis, the parties agree that the sentence imposed in this
case as unconstitutional in that it exceeded the otherwise applicable statutory maximum
penalty under 18 U.S.C. § 922(g)(1) of 10 years of incarceration and 3 years of supervised
release. Petitioner has served in excess of the maximum sentence allowable. Therefore,
the parties have stipulated that a sentence of 120 months of incarceration and a 3-year
term of supervised release is sufficient, but not greater than necessary. Dkt. No. 8, ¶ 6.
The Court agrees that Petitioner’s previous sentence was unconstitutional and that
a reduction is necessary pursuant to Johnson and Welch. The Court concludes that the
parties’ stipulation is fair and just under the law and hereby GRANTS Petitioner’s Motion
pursuant to 28 U.S.C. § 2255.

Petitioner shall be sentenced to 120 months of

incarceration to be followed by a 3-year term of supervised release. A Judgment and

Commitment in the associate criminal matter shall be forthcoming. Judgment consistent
with this Order shall issue in this matter.
This Order shall also be entered on the docket in the underlying criminal
action, United States v. Skidmore, Cause No. 1:99-cr-00120-LJM-TAB-1.
IT IS SO ORDERED this 17th day of March, 2017.

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LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Sara J. Varner
INDIANA FEDERAL COMMUNITY DEFENDERS
[e-mail]
James Robert Wood
OFFICE OF THE U.S. ATTORNEY
10 West Market Street, Suite 2100
Indianapolis, IN 46204
[e-mail]
USPO
USMS