Everett v. United States of America
Filing
2
ORDER signed by Judge J.P. Stadtmueller on 5/15/2017: 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 Laneer Everett at Oxford Federal Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LANEER EVERETT,
Petitioner,
v.
Case No. 17‐CV‐523‐JPS
Criminal Case No. 10‐CR‐167‐2‐JPS
UNITED STATES OF AMERICA,
Respondent.
ORDER
On April 12, 2017, Laneer Everett (“Everett”) filed a motion pursuant
to 28 U.S.C. § 2255, asserting that his conviction and sentence were imposed
in violation of the Constitution. (Docket #1). The Court now turns to
screening Everett’s motion under Rule 4 of the Rules Governing Section 2255
Proceedings, which requires the Court to promptly examine the motion and
dismiss it “[i]f it plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that [Everett] is not entitled to relief.” For the
reasons stated below, the Court finds that Everett presents no colorable basis
for habeas relief and, as a result, his motion must be denied.
1.
BACKGROUND
In his criminal case, Everett was charged by indictment with one
count of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951 and 2; one
count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 846,
841(b)(1)(A), and 2; one count of possession of a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(I); and one count of
possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g) and
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924(a)(2). (Case No. 10‐CR‐167‐2, Docket #9). On May 6, 2011, he agreed to
plead guilty to the narcotics offense. (Case No. 10‐CR‐167‐2, Docket #86). The
other counts were dismissed by agreement with the government. Id.
On May 17, 2012, judgment was entered on Everett’s offense of
conviction. (Case No. 10‐CR‐167‐2, Docket #154). He was sentenced to 180
months of imprisonment and 5 years of supervised release. Id. at 2–3. In his
presentence investigation report, which the Court adopted at sentencing,
Everett was assessed the career‐offender enhancement under U.S. Sentencing
Guideline § 4B1.1. That Guideline provides that those who qualify as “career
offenders” must be given certain offense level and criminal history category
increases. U.S.S.G. § 4B1.1(b). A defendant is a career offender if (1) he was
at least eighteen years old at the time he committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and (3) the defendant has
at least two prior felony convictions for either a crime of violence or a
controlled substance offense. Id. § 4B1.1(a). As will be explained further
below, in this case Everett challenges the third element, arguing that he does
not have enough qualifying predicate offenses to be considered a career
offender.
At the time Everett was sentenced, the term “crime of violence” as
used in the Guidelines was defined as “any offense under federal or state
law, punishable by imprisonment for a term exceeding one year, that—(1)
has as an element the use, attempted use, or threatened use of physical force
against the person of another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.” Id. § 4B1.2(a) (emphasis
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added). The italicized portion of this definition is known as the “residual”
clause.1
As noted in Everett’s presentence investigation report, he has three
prior felony convictions considered to form predicates for his career‐offender
enhancement. One is delivery of cocaine, in violation of Wisconsin state law,
which undoubtedly counts as a “controlled substance offense” under
U.S.S.G. § 4B1.2(a)(3) (and Everett does not argue otherwise). See U.S.S.G. §
4B1.2(b). The other two convictions are for fleeing/eluding a police officer as
an operator of a vehicle, in violation of Wis. Stat. § 346.04(3). These offenses
were viewed at sentencing as crimes of violence under the residual clause of
U.S.S.G. § 4B1.2(a)(2). Without these offenses counted into the analysis,
Everett would not have enough predicate offenses to qualify for the career‐
offender enhancement.
2.
DISCUSSION
2.1
Everett’s Claims
Against this backdrop, the Court analyzes Everett’s present motion.
Initially, Everett acknowledges that his motion falls well outside the one‐year
1
Pursuant to Amendment 798 to the Guidelines, effective August 1, 2016, the
Sentencing Commission deleted the residual clause contained in U.S.S.G. §
4B1.2(a)’s definition of “crime of violence” and replaced it with language that
simply enumerates specific offenses that can be considered crimes of violence.
Amendment 798 was not made retroactive, see U.S.S.G. § 1B1.10(d) (listing
amendments to be applied retroactively pursuant to 18 U.S.C. § 3582(c)(2)); United
States v. Delapp, Case No. 1:13CR00036‐008, 2016 WL 8234984, at *1 n.2 (W.D. Va.
Oct. 31, 2016), and it is therefore not applicable to Everett, U.S.S.G. § 1B1.11 (“The
court shall use the Guidelines Manual in effect on the date that the defendant is
sentenced.”); Belton v. United States, 71 F. App’x 582, 583 (7th Cir. 2003) (noting that
Section 1B1.10 of the Guidelines defines which amendments may be applied
retroactively).
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limitations period for motions under Section 2255, whether considered in
relation to the date his conviction became final or when the time period for
filing a challenge under Johnson v. United States, 135 S. Ct. 2551 (2015),
expired. See (Docket #1 at 4–5); 28 U.S.C. § 2255(f). He claims that the
limitations period should be tolled because his counsel prevented him from
learning the facts supporting his claims. (Docket #1 at 4). In the motion,
Everett raises two claims. First, he asserts that his counsel was
constitutionally ineffective for failing to file a motion challenging his career‐
offender enhancement under the Guidelines in light of Johnson, since his
Wisconsin vehicular flight convictions are not crimes of violence and should
not have been considered predicates for purposes of the enhancement. Id. at
9–11. Second, Everett contends that because he does not qualify as a career
offender under the Guidelines, he is entitled to a two‐point offense level
reduction under Amendment 782 to the Guidelines as to his narcotics
conviction. Id.
The Court need not reach the question of whether Everett’s counsel
was constitutionally ineffective, however, because neither of Everett’s
underlying claims has any merit, and so his counsel cannot have been
ineffective for failing to present them. See Strickland v. Washington, 466 U.S.
668, 694 (1984) (in order to prove ineffective assistance of counsel, the
movant must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different”); Ross v. United States, 339 F.3d 483, 492 (7th Cir. 2003)
(“When applying Strickland, if we can more easily dispose of an ineffective
assistance claim based on lack of prejudice, we should follow that route.”).
The Court discusses each claim in turn.
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2.2
Violation of Wis. Stat. § 346.04(3) is a Crime of Violence
The main thrust of Everett’s motion is that his prior convictions for
vehicular flight, in violation of Wis. Stat. § 346.04(3), are not crimes of
violence under the Guidelines’ definition and should not have formed
predicates for his career‐offender enhancement. (Docket #1 at 9–10). His
position is incorrect. To start, the Wisconsin vehicular flight statute provides,
in relevant part, that
no operator of a vehicle, after having received a visual or
audible signal from a traffic officer, or marked police vehicle,
shall knowingly flee or attempt to elude any traffic officer by
willful or wanton disregard of such signal so as to interfere
with or endanger the operation of the police vehicle, or the
traffic officer or other vehicles or pedestrians, nor shall the
operator increase the speed of the operator’s vehicle or
extinguish the lights of the vehicle in an attempt to elude or
flee.
Wis. Stat. § 346.04(3). This statute also prohibits, in separate subsections,
mere failure to comply with a traffic officer’s direction by any person,
disobedience to such a signal by a driver of a vehicle, and knowing resistance
to such a signal by failing to stop “as promptly as safety reasonably permits.”
Id. § 346.04(1)–(2t). Based on the wording and structure of the statute, a
violation of Subsection (3) is the most serious form of offense. See id. Both of
Everett’s vehicular flight offenses were violations of Subsection (3).
Before discussing the relevant precedent, the Court will briefly review
how such a statute is analyzed for purposes of determining whether it meets
the definition of “crime of violence” given in the Guidelines. Courts first try
to examine the statute in question using the “categorical approach,” which
asks whether a generic form of the offense meets the relevant definition in
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the Guideline. United States v. Lynn, 851 F.3d 786, 795 (7th Cir. 2017). Here,
because only a portion of the Guidelines at issue is the residual clause, the
question becomes whether a generic form of the offense in question, without
reference to the defendant’s actual conduct, involves conduct that presents
a serious potential risk of physical injury to another. United States v. Miller,
721 F.3d 435, 437 (7th Cir. 2013); James v. United States, 550 U.S. 192, 197
(2007). Asking whether an offense poses a serious risk of injury is more open‐
ended than, for example, comparing a state’s definition of burglary to the
common‐law definition. Thus, in applying the categorical approach to the
residual clause, courts often look to whether the offense in question poses a
sufficient risk “as guided by the types and degrees of risks presented by the
enumerated crimes—burglary, arson, extortion, and crimes involving the use
of explosives.” Miller, 721 F.3d at 439.
If the statutory definition of the offense is the same as (or narrower
than) the Guidelines definition—that is, the generic definition—the offense
can be counted as a crime of violence. United States v. Edwards, 836 F.3d 831,
835 (7th Cir. 2016). But if the statute defines the offense more broadly than
the Guidelines, the prior conviction does not count, “even if the defendant’s
actual conduct (i.e., the facts of the crime)” would fit within the Guidelines
definition. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). However, if a
statute is “divisible” into several categories, courts apply a “modified
categorical approach,” wherein they examine a limited class of judicial
records to determine which specific category of offense the defendant
committed. Edwards, 836 F.3d at 835; Descamps v. United States, 133 S. Ct. 2276,
2281 (2013). In Mathis, a decision issued just last year, the Supreme Court
explained that the bar for finding that a statute divisible is high: such a
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statute must define one or more elements of the crime in the disjunctive
rather than merely listing several alternative factual means to commit a
crime. Mathis, 136 S. Ct. at 2253.
This analytical framework animates the precedent underlying the
Court’s decision in this case. In United States v. Dismuke, 593 F.3d 582, 589 (7th
Cir. 2010), the Seventh Circuit found that Subsection (3) of Wis. Stat. § 346.04
was divisible into two categories. The first category is fleeing or attempting
to elude an officer “by willful or wanton disregard of [the officer’s] signal so
as to interfere with or endanger the operation of the police vehicle, or the
traffic officer or other vehicles or pedestrians.” Wis. Stat. § 346.04(3). The
second is “increas[ing] the speed of the operator’s vehicle or extinguish[ing]
the lights of the vehicle in an attempt to elude or flee.” Id. The court therefore
applied the modified categorical approach and determined, based on the
relevant judicial records, that the defendant’s offense fell within the second
category. Dismuke, 593 F.3d at 589.2
The Court of Appeals held that a prior conviction under the second
category of Wis. Stat. § 346.04(3) qualified as a “violent felony” for purposes
of sentence enhancement under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). The ACCA defines a “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that “(I) has as
an element the use, attempted use, or threatened use of physical force against
the person of another; or (ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
2
Because the Dismuke decision pre‐dated Mathis, the Seventh Circuit was applying
a less stringent divisibility analysis. As will be discussed further below, this
discrepancy does not affect the Court’s decision here. See infra note 6.
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physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added). Of note
in this analysis, the emphasized portion of this definition is identical to the
analogous clause in the career‐offender Guideline, U.S.S.G. § 4B1.2(a)(2), and
it is also referred to as the “residual” clause. Because they are identical,
precedent analyzing either clause is interchangeable. Edwards, 836 F.3d at 835
n.2.
In Dismuke, the Court of Appeals found that an offense under the
second category of Wis. Stat. § 346.04(3) did not have “as an element the use,
attempted use, or threatened use of physical force against the person of
another,” nor was it listed among the exemplar offenses in the second clause
of the ACCA. See Dismuke, 593 F.3d at 589. Nevertheless, the court concluded
that the offense fell within the ACCA’s residual clause because it involved
conduct that “presents a serious potential risk of physical injury to another.”
Id. at 594. Thus, the offense constituted a violent felony and was a viable
predicate for sentence enhancement under the ACCA. Relying on Dismuke,
the Court of Appeals later concluded that a violation of Wis. Stat. § 346.04(3)
also constitutes a crime of violence for purposes of the career‐offender
Guideline. United States v. Jenkins, 417 F. App’x 548, 549 (7th Cir. 2011).3
In the present motion, Everett seizes upon the fact that in 2015, the
Supreme Court invalidated the residual clause of the ACCA, finding that it
is unconstitutionally vague. Johnson, 135 S. Ct. at 2560. Under Everett’s
approach, Johnson implicitly overruled Dismuke’s holding that vehicular
3
The Jenkins court did not engage in a categorization analysis and did not
specifically find that the offense in question fell within the second category of Wis.
Stat. § 364.04(3). This may have been true as a matter of fact in that case, but the
Seventh Circuit simply did not say one way or another.
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flight is a violent felony under the ACCA, since that holding rested entirely
on the ACCA’s residual clause. In his view, because such an offense cannot
be categorized as a violent felony under the ACCA in light of Johnson, it
follows that the same offense cannot be considered a crime of violence under
the residual clause of the career‐offender Guideline.4
He is wrong for two interrelated reasons. First, earlier this year, the
Court found that the residual clause of the career‐offender Guideline, unlike
the ACCA, is not subject to a due‐process vagueness challenge. Beckles v.
United States, 137 S. Ct. 886, 897 (2017). As far as this Court is aware, the
residual clause of that Guideline has not been successfully challenged on
other grounds, and Everett advances no reason to question it beyond his
reference to Johnson. As a result, the career‐offender Guideline’s residual
clause is still valid. Thus, it is still possible for Everett’s Wisconsin vehicular
flight offenses to be classified as crimes of violence under the Guidelines’
residual clause.
This leads to the second reason why Everett’s position is misguided:
pre‐Johnson authority on how to classify offenses under the residual clause
remains viable, and it shows that violation of Wis. Stat. § 346.04(3) must be
deemed a crime of violence. Here, the Supreme Court’s decision in Sykes v.
4
In a letter, Everett’s counsel advised him that “courts no longer recognize
fleeing/eluding as contributing to career offender status.” (Docket #1 at 13). This
opinion probably rests on recent amendments to the Guidelines’ definition of “crime
of violence,” which have removed the residual clause. See supra note 1. But the
Guidelines definition in force at the time of Everett’s sentencing controls, see id., and
it included the residual clause discussed herein. Moreover, to the extent counsel
suggests Johnson had some effect on the classification of Everett’s vehicular flight
offenses under the career‐offender Guideline, he cites no authority for this
proposition, and the applicable law reviewed in this Order leads this Court to
disagree.
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United States, 564 U.S. 1 (2011), which post‐dates Dismuke, controls. The
Court, examining the Indiana vehicular flight statute, applied the categorical
approach in determining whether an offense under the statute qualified as
a violent felony under the ACCA’s residual clause. Id. at 7–8. The Indiana
statute, similar to Wisconsin’s, set forth several subsections defining
escalating types of vehicle flight, which Justice Kagan summarized in her
dissent as “flight resulting in death; flight resulting in physical injury; flight
creating a substantial risk of physical injury; flight.” Id. at 43 (Kagan, J.,
dissenting); Ind. Code § 35‐44‐3‐3. The defendant in Sykes was convicted of
the least serious of these, which Justice Kagan called “simple vehicular
flight” as distinguished from its more aggravated varieties. Sykes, 564 U.S. at
36, 43 (Kagan, J., dissenting).
Because the majority assessed the statute as a whole under the
categorical approach, it had to consider whether generic vehicular flight
could be considered a violent felony, without mincing it into simple or
aggravated forms. See id. at 14. In doing so, the majority emphasized that
“[r]isk of violence is inherent to vehicle flight.” Id. at 10. The Court explained
that
the determination to elude capture makes a lack of concern for
the safety of property and persons of pedestrians and other
drivers an inherent part of the offense. Even if the criminal
attempting to elude capture drives without going at full speed
or going the wrong way, he creates the possibility that police
will, in a legitimate and lawful manner, exceed or almost
match his speed or use force to bring him within their custody.
A perpetrator’s indifference to these collateral consequences
has violent—even lethal—potential for others. A criminal who
takes flight and creates a risk of this dimension takes action
similar in degree of danger to that involved in arson, which
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also entails intentional release of a destructive force dangerous
to others. This similarity is a beginning point in establishing
that vehicle flight presents a serious potential risk of physical
injury to another.
Id. at 9; see also United States v. Howze, 343 F.3d 919, 922 (7th Cir. 2003)
(vehicular flight under Wis. Stat. § 346.04(3) is a violent felony because
“[b]ystanders are in particular jeopardy” and “[c]ollisions between fleeing
vehicles and pedestrians or others who get in the way are common.”).
Indeed, given the nature of vehicular flight, the Court concluded that it
posed a “more certain risk [of physical harm] as a categorical matter than
burglary,” one of the enumerated offenses in the ACCA’s definition of
“violent felony.” Sykes, 564 U.S. at 10. Thus, the Court concluded that
vehicular flight is, as a categorical matter, a violent felony under the ACCA
because it poses a serious potential risk of physical injury to others. Id. at 11.
Sykes points inescapably to the conclusion that vehicular flight under
Wis. Stat. § 346.04(3) must be classified a crime of violence under the
Guidelines. First, it is notable that the Sykes Court, viewing vehicular flight
as a whole—both simple and aggravated—found that it posed a serious risk
of injury to others. Id. This Court could place a full stop there, as it is
indisputable that Everett committed some form of vehicular flight.
Yet this case is even clearer than Sykes because it implicates an
aggravated form of vehicular flight. Despite disagreements on the Court
about whether they should contrast simple and aggravated forms of flight,
it is apparent that the nearly the entire Court would have agreed that some
aggravated form of vehicular flight should be classified as a violent felony.
Sykes, 564 U.S. at 16; id. at 16 (Thomas, J. concurring in the judgment) (“I
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agree with the Court that the Indiana crime of intentional vehicular flight is
a ‘violent felony’ under the [ACCA].”) (internal citations omitted); id. at
43–44 (Kagan, J., dissenting) (concluding that aggravated vehicular flight,
which “creates a substantial risk of bodily injury to another person,” should
be considered a violent felony, while simple vehicular flight should not).5
The structure of Wis. Stat. § 346.04 reveals that Subsection (3)
constitutes the most aggravated form of vehicular flight in Wisconsin.
Moreover, its language demonstrates that any offense under this subsection
by its nature involves a serious potential risk of physical injury. As the
Supreme Court reasoned in Sykes, the simple decision to elude an officer,
whether or not done in an especially dangerous way, raises the distinct
possibility of tragic results for the offender, the officer, and bystanders. Id. at
9. In this case, the fundamental tenet of Subsection (3) is that the offender has
decided to knowingly evade a traffic officer by some means. Thus, the Court
is obliged to conclude that, under Sykes, any violation of Wis. Stat. § 346.04(3)
5
Justice Scalia expressed no opinion on this point in his dissent; he argued that
the ACCA’s residual clause should simply be found void for vagueness. Sykes, 561
U.S. at 35 (Scalia, J., dissenting).
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is a crime of violence for Guidelines purposes.6
This is true notwithstanding the Seventh Circuit’s suggestion
otherwise in United States v. Coleman, 380 F. App’x 530 (7th Cir. 2010). There,
the Seventh Circuit hinted that it might not find a vehicular flight offense
under the first category of Wis. Stat. § 346.04(3)—that is, merely
“disregarding a signal from a traffic officer”—to qualify as a crime of
violence. Id. at 532. But this was only dictum, and to the extent Coleman is at
6
Of course, Dismuke and Jenkins certainly point toward this conclusion, too.
Dismuke, 593 F.3d at 594; Jenkins, 417 F. App’x at 549. But Mathis may call into
question Dismuke’s conclusion that Subsection (3) is divisible, as it is arguable that
both the first and second categories within that subsection are merely different
means of satisfying the factual predicate of flight. See Mathis, 136 S. Ct. at 2248. Yet
whether or not Dismuke’s divisibility analysis survives Mathis, Sykes shows that the
Court views aggravated vehicular flight as inherently dangerous, and because
Subsection (3) of Wis. Stat. § 346.04 defines the highest form of aggravated vehicular
flight in Wisconsin, it does not matter whether there exists a first or second category
of such an offense, much less which one Everett committed.
Further, even if the Court followed Dismuke and found that Wis. Stat. §
346.04(3) was divisible, this would hurt, not help, Everett’s case. The presentence
report in his criminal case reveals that Everett’s vehicular flight offenses would
undoubtedly fall under the second, more serious category in Wis. Stat. § 346.04(3).
In one such offense, officers observed Everett driving at a high rate of speed. They
attempted to pull him over, but he fled. Some time later, Everett exited the vehicle
while it was still moving and fled on foot. His vehicle struck a parked car. Officers
eventually found and arrested him. In the other case, an officer could hear loud
music coming from Everett’s vehicle. The officer attempted to conduct a traffic stop,
but as he began to walk toward the vehicle, Everett sped away. The officer returned
to his vehicle to pursue and noted that Everett drove recklessly as he attempted to
evade the officer. Everett drove into an empty parking lot, exited his vehicle, and
fled on foot. He was eventually apprehended by police. Given the characteristics of
Everett’s vehicular flight offenses, they fall squarely within the second category of
Wis. Stat. § 346.04(3). See Coleman, 380 F. App’x at 532 (finding that the defendant’s
conduct fell within the second category because it involved “actual fleeing” from
police) (quotation marks omitted). This finding, in turn, would lead the Court to
conclude, consistent with Sykes, Dismuke, and Jenkins, that Everett’s offenses
constitute crimes of violence for purposes of the Guidelines.
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odds with the Supreme Court’s later pronouncements in Sykes, this Court
must follow Sykes. Accordingly, Everett’s vehicular flight offenses under Wis.
Stat. § 346.04(3) are properly considered crimes of violence under the
residual clause of the career‐offender Guideline, and it was therefore not
inappropriate that he was assessed the career‐offender enhancement.
2.3
Sentence Reduction Under Amendment 782
This conclusion undermines Everett’s other claim, that he is entitled
to a two‐point offense‐level reduction pursuant to Amendment 782, which
affected base offense levels in narcotics cases. However, Amendment 782 had
no effect on the Guideline for career offenders. It would alter his Guidelines
range if his career‐offender enhancement was invalid, and the Court has
found otherwise. As a result, Amendment 782 affords Everett no relief here.
3.
CONCLUSION
Since the claims discussed above are all the bases for relief Everett has
presented, and because those claims are without merit, the Court is obliged
to deny his motion under Section 2255.7
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), Everett must make a “substantial
showing of the denial of a constitutional right” by establishing that
7
For reasons unknown, Everett also appears to contend that the residual clause of
Section 924(c)(3), which is identical to the ACCA residual clause, is void for
vagueness. (Docket #1 at 6). This is true, United States v. Cardena, 842 F.3d 959,
995–96 (7th Cir. 2016), but irrelevant. Everett’s Section 924(c) charge was dismissed
under his plea agreement. It had no effect on his Guidelines calculation or his
sentence.
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“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 binding precedent on the issues raised
in Everett’s petition, as detailed above, the Court cannot fairly conclude that
reasonable jurists would debate whether his motion should be decided
differently; as a consequence, the Court must deny him a certificate of
appealability.
The Court closes with some information about the actions that Everett
may take if he wishes to challenge the Court’s resolution of this case. This
order and the judgment to follow are final. A dissatisfied party may appeal
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.
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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 Petitioner’s motion to vacate, set aside, or
correct his 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.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 15th day of May, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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