Green v. United States of America

Filing 4

ORDER signed by Judge Pamela Pepper on 1/3/2017 REQUIRING the government to respond by the end of the day on January 31, 2017 to the 1 Plaintiff's motion to vacate, set aside or correct his sentence under 28 U.S.C. sec. 2255. (cc: all counsel; by US Mail to plaintiff)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
LARRY W. GREEN,

Case No. 16-cv-502-pp

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________________
ORDER REQUIRING GOVERNMENT TO RESPOND TO PETITION BY A
DATE CERTAIN (DKT. NO. 1)
______________________________________________________________________________
On April 25, 2016, the petitioner filed a motion to vacate, set aside or
correct his sentence under 28 U.S.C. §2255. Dkt. No. 1. In the motion, he
indicated that he was sentenced as a career offender under U.S.S.G. §4B1.1,
that one of his two predicate convictions fell under the residual clause of that
guideline section, and that under Johnson v. United States, 135 S. Ct. 2551
(2015), that conviction cannot form the predicate for a career offender
enhancement. Id.
On May 3, 2016, the Federal Defender indicated that it did not plan to
file anything on the petitioner’s behalf. Dkt. No. 2. On May 3, 2016, Judge
Randa (then assigned to the case) issued an order, staying the petition until
the Seventh Circuit Court of Appeals could issue its decisions in United States
v. Hurlburt/Gillespie, 835 F.3d 715 (7th Cir. 2016) and United States v.
Rollins, 836 F.3d 737 (7th Cir. 2016). Dkt. No. 2. The Seventh Circuit since has
decided those cases (finding that the career offender residual clause was
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unconstitutionally vague). The Supreme Court now has accepted certiorari on
the issue of whether the Johnson decision applies retroactively to collateral
attacks such as the one the petitioner brings. Beckles v. United States, 136 F.
Ct. 2510 (June 27, 2016).
On September 16, 2011, Judge Randa sentenced the defendant to serve
120 months in custody. United States v. Green, 11-cr-47-RTR, Dkt. No. 97.
(This appears to have been a below-guidelines sentence; his attorney’s
sentencing memorandum indicates that the petitioner’s guideline range was
151-188 months. Dkt. No. 78.) The petitioner appealed, dkt. no. 98, but then
asked to dismiss the appeal; the Seventh Circuit granted that request. Dkt. No.
247.
Four years later, on September 11, 2015, the petitioner filed a motion to
reduce his sentence pursuant to Amendment 782 of the Sentencing Guidelines.
Dkt. No. 299. Judge Randa denied that motion, for the very reason that the
defendant’s sentence had been enhanced because he was a career offender.
Dkt. No. 306.
It appears, from the court’s review of the criminal docket, that the
petitioner was taken into custody sometime in February 2011. Dkt. Nos. 7, 9. If
that is the case, it appears that he has served somewhere in the neighborhood
of five years and ten months of his ten-year sentence. The presentence
investigation report is not on the criminal docket, so the court cannot review it
to determine the nature of the predicate convictions that caused Judge Randa
to sentence the defendant as a career offender. The court also cannot
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determine, without seeing the presentence report, what difference it would
make in the petitioner’s sentence if he were to prevail on the claim he raises in
his petition, and whether prevailing would put him close to, or even past, his
release date.
The court ORDERS that, no later than the end of the day on January
31, 2017, the government shall file a response to the petition, indicating
whether it opposes the relief suggested, or whether it requests more time to
investigate the circumstances surrounding the petitioner’s designation as a
career offender. The court also ORDERS that the government shall indicate in
its filing what the petitioner’s guideline range would have been had he not been
classified as a career offender.
Dated in Milwaukee, Wisconsin this 3rd day of January, 2017.

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