WILSON v. USA
ENTRY - Dismissing Motion to Vacate, Set Aside, or Correct Sentence and Denying a Certificate of Appealability; the Court finds that the petitioner has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability. The court now dismisses this action pursuant to Rule 4 because the holdings in Cl ark and Armour foreclose the petitioner's challenge to his sentence. Judgment consistent with this Entry shall now issue and a copy of this Entry shall be docketed in No. 1:99-cr-62-SEB-TAB - 1. Signed by Judge Sarah Evans Barker on 11/6/2017. Copy Mailed.(CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA,
Entry Dismissing Motion to Vacate, Set Aside, or Correct Sentence
and Denying a Certificate of Appealability
The petitioner, by counsel, filed a motion for relief pursuant to 28 U.S.C. § 2255 arguing
that under Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct.
1257 (2016), his sentence was unconstitutionally enhanced and he must be resentenced. On March
3, 2017, petitioner’s counsel was granted leave to withdraw and the petitioner was given a period
of time to either voluntarily dismiss this action or to file a brief in support of his § 2255 motion
which states the basis for his Johnson claim. That time has passed without a response from the
This action is now primed for preliminary consideration pursuant to Rule 4 of the Rules
Governing Section 2255 Proceedings for the United States District Courts. Rule 4 provides that,
“[i]f it plainly appears from the motion, and any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party.” Title 28 U.S.C. § 2255 permits a federal court to grant
relief “if it finds that the judgment was rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral attack, or that there has been such a
denial or infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.”
The Supreme Court in Johnson held that the so-called residual clause of the Armed Career
Criminal Act (“ACCA”) was unconstitutionally vague.
The Seventh Circuit summarized
Johnson’s impact on the ACCA:
The [ACCA] . . . classifies as a violent felony any crime that “is burglary, arson,
or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another”. The part of clause
(ii) that begins “or otherwise involves” is known as the residual clause. Johnson
holds that the residual clause is unconstitutionally vague.
Stanley v. United States, 827 F.3d 562, 564 (7th Cir. 2016). Johnson’s holding is a new rule of
constitutional law that the Supreme Court made retroactive in Welch v. United States, 136 S. Ct.
1257 (2016). See Holt v. United States, 843 F.3d 720, 722 (7th Cir. 2016).
Following Johnson, defendants across the country have challenged their convictions and
sentences under statutes that have the same or similar language as the ACCA’s residual clause,
arguing that those statutes must likewise be unconstitutionally vague. Mr. Wilson raises one
variant of this argument, challenging the residual clause found in 18 U.S.C. § 924(c).
On January 7, 2000, petitioner Kenneth T. Wilson was convicted of using a firearm during
and in relation to committing a “crime of violence”—specifically armed bank robbery—in
violation of § 924(c). The petition argues that post-Johnson, armed bank robbery, 18 U.S.C.
§ 2113(a), fails to qualify as a “crime of violence” because the § 924(c) residual clause is materially
indistinguishable from the ACCA residual clause (18 U.S.C. § 924(e)(2)(B)(ii)) that the Supreme
Court in Johnson struck down as void for vagueness.
Section 924(c)(1)(A) imposes minimum sentences for possessing, brandishing, or
discharging a firearm “in relation to any crime of violence or drug trafficking crime.” 18 U.S.C
§ 924(c)(1)(A). Section 924(c)(3) of the statute defines “crime of violence” to include any felony
that either “(A) has as an element the use, attempted use, or threatened use of physical force against
the person or property of another,” often referred to as the elements clause or force clause, or “(B)
by its nature, involves a substantial risk that physical force against the person or property of another
may be used,” referred to as the residual clause.
The Seventh Circuit has held the second of these two options, the “residual clause,” is
unconstitutionally vague in light of Johnson’s holding that a similar residual clause in the ACCA,
18 U.S.C. § 924(e)(2)(B)(ii), was unlawfully vague. United States v. Cardena, 842 F.3d 959, 995–
96 (7th Cir. 2016) (citing Johnson, 135 S.Ct. at 2557). So to be a crime of violence, armed bank
robbery must qualify under the surviving “elements clause,” see 18 U.S.C. § 924(c)(3)(A). Mr.
Wilson argues that it does not. But since his petition was filed on June 24, 2016, the Seventh
Circuit has held armed bank robbery qualifies under the “elements clause” as a crime of violence.
Clark v. United States, 680 Fed. Appx. 470, 473 (7th Cir. 2017); see also United States v. Armour,
840 F.3d 904, 907–09 (7th Cir. 2016) (holding that even an attempt to commit an unarmed bank
robbery is a crime of violence under the elements clause). Therefore, even though Johnson
invalidated § 924(c)(3)’s residual clause, armed bank robbery remains a crime of violence under
§ 924(c)(3)’s elements clause, and it therefore constitutes a valid predicate crime of violence for
the purposes of Mr. Wilson’s convictions. Mr. Wilson is thus not entitled to relief.
Accordingly, the court now dismisses this action pursuant to Rule 4 because the holdings
in Clark and Armour foreclose the petitioner’s challenge to his sentence.
Judgment consistent with this Entry shall now issue and a copy of this Entry shall be
docketed in No. 1:99-cr-62-SEB-TAB -1.
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 the petitioner has failed to show
that reasonable jurists would find “it debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore
denies a certificate of appealability.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
TALLADEGA - FCI
TALLADEGA FEDERAL CORRECTIONAL INSTITUTION
P.O. BOX 1000
TALLADEGA, AL 35160
Sara J. Varner
INDIANA FEDERAL COMMUNITY DEFENDERS
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
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