Nunn v. United States of America

Filing 8

ORDER signed by Judge J.P. Stadtmueller on 4/26/2017: LIFTING the stay in this matter; DENYING 1 Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Section 2255; DISMISSING action with prejudice; and DENYING Certificate of Appealability. (cc: all counsel, via mail to Deja M. Nunn at Waseca Federal Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEJA M. NUNN,
Petitioner,
v.

Case No. 16-CV-988-JPS
Criminal Case No. 15-CR-51-JPS-3

UNITED STATES OF AMERICA,
Respondent.

ORDER

On July 27, 2016, Petitioner Deja M. Nunn (“Nunn”) filed a motion
pursuant to 28 U.S.C. § 2255, asserting that her conviction and sentence were
imposed in violation of the Constitution. (Docket #1). The case was stayed
pending resolution of several relevant appeals in the Seventh Circuit. (Docket
#4). Those appeals have been resolved, so the Court will lift the stay and
proceed to screening Nunn’s motion under Rule 4 of the Rules Governing
Section 2255 Proceedings, which requires the Court to promptly examine
Nunn’s motion and dismiss it “[i]f it plainly appears from the motion, any
attached exhibits, and the record of prior proceedings that [Nunn] is not
entitled to relief.”
On January 7, 2016, Nunn was convicted of two counts of Hobbs Act
robbery, in violation of 18 U.S.C. §§ 1951(a) and 2, and one count of
brandishing of a firearm during a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii) and 2. In the presentence investigation report and addenda
thereto, the Probation Office found that under the U.S. Sentencing
Guidelines, Nunn had a total offense level of 26 and a criminal history
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category of I. Nunn was sentenced to 15 months of imprisonment as to the
robbery counts and received the mandatory minimum sentence of 84 months
as to the firearm offense. These terms were ordered to run consecutively, as
required by statute, for a total term of imprisonment of 99 months.
In the instant motion, Nunn appears to raise two claims. First, she
asserts that she should not have been subject to a sentencing enhancement
either under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1),
or the Guidelines’ career-offender provisions, in light of the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015). See (Docket #1 at
1–3, 7). This argument fails straight out of the gate, however, because Nunn
was not subject to any sentencing enhancement pursuant to the ACCA.
Instead, she was sentenced under Section 924(c)(1)(A)(ii), a provision not
addressed in Johnson. As a result, the rule in Johnson has no bearing on her
sentence. Nor did the career-offender provisions of the Guidelines come into
play in her case, as the presentence report makes clear. Thus, this claim must
fail.
Second, though she does not make this clear in her motion, Nunn may
be claiming that Hobbs Act robbery is not a “crime of violence” as defined in
18 U.S.C. § 924(c). See (Docket #1 at 2–4). If true, this would mean that her
Hobbs Act robberies could not serve as a predicate for her offense under 18
U.S.C. § 924(c)(1)(A)(ii), which requires that a firearm be used during a crime
of violence. However, this argument is without merit, since the Seventh
Circuit expressly found in United States v. Anglin, 846 F.3d 954, 964–65 (7th
Cir. 2017), that Hobbs Act robbery qualifies as a “crime of violence” under

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Section 924(c) despite the holding in Johnson.1 Accordingly, Nunn advances
no colorable claim for habeas relief, and her motion must be denied.
Finally, under Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Nunn must make a “substantial
showing of the denial of a constitutional right” by establishing that
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations omitted).
Further, when the Court has denied relief on procedural grounds, the
petitioner must show that jurists of reason would find it debatable both that
the “petition states a valid claim of the denial of a constitutional right” and
that “the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). In light of the indisputably mistaken factual premises
of Nunn’s claim, the Court cannot fairly conclude that reasonable jurists
would debate whether her motion should be decided differently; as a
consequence, the Court must deny her a certificate of appealability.
The Court closes with some information about the actions that Nunn
may take if she wishes to challenge the Court’s resolution of this case. This
order and the judgment to follow are final. A dissatisfied party may appeal

1

Similarly, to the extent Nunn believes that Johnson supports a due-process
challenge to the advisory Guidelines under which she was sentenced, the Supreme
Court recently foreclosed that argument in Beckles v. United States, 137 S. Ct. 886,
895 (2017).

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this Court’s decision to the Court of Appeals for the Seventh Circuit by filing
in this Court a notice of appeal within thirty days of the entry of judgment.
See Fed. R. App. P. 3, 4. This Court may extend this deadline if a party timely
requests an extension and shows good cause or excusable neglect for not
being able to meet the 30-day deadline. See id. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or amend its
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from
judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the
entry of judgment. The Court cannot extend this deadline. See Fed. R. Civ. P.
6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must be filed
within a reasonable time, generally no more than one year after the entry of
the judgment. The Court cannot extend this deadline. Id. A party is expected
to closely review all applicable rules and determine what, if any, further
action is appropriate in a case.
Accordingly,
IT IS ORDERED that the stay in this matter be and the same is hereby
LIFTED;
IT IS FURTHER ORDERED that Petitioner’s motion to vacate, set
aside, or correct her sentence pursuant to Section 2255 (Docket #1) be and the
same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and same is hereby
DISMISSED with prejudice; and
IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.

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The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 26th day of April, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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