YOUNG v. USA

Filing 14

Entry Denying Motion for Relief Pursuant to 28 U.S.C. § 2255 And Denying Certificate of Appealability. The respondent filed a response brief addressing all of the petitioner's claims. The petitioner's deadline to file a reply brief has passed and he has not filed anything with the Court. The petitioner's motion for relief under § 2255 is denied. Signed by Judge William T. Lawrence on 7/25/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KERRY D. YOUNG,
Petitioner,
vs.
USA, ,
Respondent.

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No. 1:16-cv-02300-WTL-DML

Entry Denying Motion for Relief Pursuant to 28 U.S.C. § 2255
And Denying Certificate of Appealability
The Seventh Circuit Court of Appeals authorized the petitioner to file a second or
successive motion to vacate under 28 U.S.C. § 2255, which led to the opening of this action. In
his § 2255 motion, the petitioner argues that, under Johnson v. United States, 135 S. Ct. 2551
(2015), his sentence is unconstitutional. The Court appointed counsel for the petitioner, but the
petitioner’s counsel eventually withdrew. The petitioner then filed a pro se brief in support of his
motion that raises additional non-Johnson claims. The respondent filed a response brief addressing
all of the petitioner’s claims. The petitioner’s deadline to file a reply brief has passed and he has
not filed anything with the Court. For the reasons stated below, the petitioner’s motion for relief
under § 2255 is denied.
First, the petitioner challenges his sentence pursuant to Johnson. The Seventh Circuit
recently summarized Johnson’s holding:
Johnson holds that part of 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutional. . . . The
statute defines some of these categories and adds a kicker in clause (ii), which
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). The petitioner argues that he was
sentenced as a career offender under United States Sentencing Guideline § 4B1.2(a)(2) and thus
because Johnson held that the residual clause of the Armed Career Criminal Act is
unconstitutionally vague, it follows that the identical residual clause in the career offender
provision of the Sentencing Guidelines is also unconstitutionally vague.
The respondent points out that the petitioner was not sentenced pursuant to the career
offender provision but, instead, was sentenced to 180 months’ imprisonment in accordance with
the terms of the Plea Agreement. But even if he was sentenced as a career offender, the Supreme
Court in Beckles v. United States, 137 S. Ct. 886 (2017), held that the Sentencing Guidelines are
not subject to vagueness challenges under the Due Process Clause. In other words, the holding of
Johnson does not apply to cases, like the petitioner’s, challenging guideline calculations, and thus
he is not entitled to relief on this basis.1
Second, the petitioner’s supplemental brief raises claims pursuant to Dean v. United States,
137 S. Ct. 1170 (2017), and Mathis v. United States, 136 S. Ct. 2243 (2016). But the Seventh
Circuit only authorized the petitioner to raise a Johnson claim in his successive § 2255 motion.
See No. 1:09-cr-00081-WTL-KPF-1, Dkt. 39 at 1 (“[W]e . . . AUTHORIZE the district court to
consider the Johnson claim, along with the government’s defenses.”). The petitioner cannot raise
non-Johnson claims, such as those under Dean and Mathis, without first receiving authorization

As an alternative basis to reject the petitioner’s claims, the respondent argues that the collateral
attack waiver in his Plea Agreement forecloses him from challenging his sentence. Because the
petitioner’s claims lack merit, the Court need not address whether the collateral attack waiver bars
the petitioner’s claims.
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from the Seventh Circuit. See 28 U.S.C. § 2244(b)(3)(A); see also Holt v. United States, 843 F.3d
720, 722-23 (7th Cir. 2016). Because he has not done so, this Court may not consider those claims.
The foregoing shows that the petitioner is not entitled to relief pursuant to 28 U.S.C.
§ 2255. Judgment consistent with this Entry shall now issue.
This Entry shall also be entered on the docket in the underlying criminal action, No.
1:09-cr-00081-WTL-KPF-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” and “debatable whether the district 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: 7/25/2017
_______________________________
Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

KERRY D. YOUNG
09202-028
MILAN - FCI
MILAN FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1000
MILAN, MI 48160
Brian L. Reitz
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
[e-mail]