WICKER v. USA

Filing 7

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255) - The Court now dismisses this action pursuant to Rule 4 because the holding in Beckles forecloses the petitioner's challenge to the enhancement of his sentence under the Sen tencing Guidelines. Judgment consistent with this Entry shall now issue and a copy of this Entry shall be docketed in No. 4:12-cr-28-TWP-VTW-1. Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 proc eedings, 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. See Entry for details. Signed by Judge Tanya Walton Pratt on 6/6/2017 (copy mailed to petitioner).(LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

TERRY R. WICKER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-cv-00106-TWP-TAB

Entry Dismissing Motion to Vacate, Set Aside, or Correct Sentence
and Denying a Certificate of Appealability
The petitioner filed a motion for relief pursuant to 28 U.S.C. § 2255 arguing that, under
Johnson v. United States, 135 S.Ct. 2551 (2015), his sentence was unconstitutionally enhanced
and he must be resentenced. For the reasons stated below, the motion for relief is denied and this
action is dismissed pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the
United States District Courts.
Rule 4 provides that upon preliminary consideration by the district court judge, “[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.” 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.”

On August 13, 2013, this Court sentenced Terry R. Wicker to a term of 99 months
imprisonment after finding that he was a career offender under United States Sentencing
Guidelines § 4B1.1, consistent with the Presentence Investigation Report. See Crim. Dkt. 46 at ¶
32. The petitioner now argues that because the residual clause of the ACCA is unconstitutionally
vague, it follows that the identical residual clause in the career offender provision of the Sentencing
Guidelines is also unconstitutionally vague. The United States Supreme Court, however, held
otherwise in Beckles v. United States, 137 S.Ct. 886 (2017), concluding 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. The petitioner was given the opportunity to file a brief in support of his § 2255 motion
after his counsel withdrew, but failed to do so. The Court now dismisses this action pursuant to
Rule 4 because the holding in Beckles forecloses the petitioner’s challenge to the enhancement of
his sentence under the Sentencing Guidelines.
Judgment consistent with this Entry shall now issue and a copy of this Entry shall be
docketed in No. 4:12-cr-28-TWP-VTW-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.

Date: 6/6/2017

Distribution:
TERRY R. WICKER
MCDOWELL - FCI
MCDOWELL FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1009
WELCH, WV 24801
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
[e-mail]