CLARK, TIMOTHY v. USA

Filing 2

ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255. No certificate of appealability shall issue. Petitioner may seek a certificate from the court of appeals under Fed. R. App. P. 22. Signed by District Judge Barbara B. Crabb on 9/14/2015. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TIMOTHY CLARK,
Petitioner,
ORDER
15-cv-544-bbc
06-cr-126-bbc
UNITED STATES OF AMERICA,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Timothy Clark has filed a motion for post conviction relief under 28
U.S.C. § 2255. He argues that he is entitled to a reduction in his sentence under the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), in which the
Court held that the vagueness of the residual clause in 18 U.S.C. § 924(e)(2)(B) violated the
due process clause of the Fifth Amendment.
This is petitioner’s first motion for post conviction relief, so he does not need the
permission of a panel of the Court of Appeals for the Seventh Circuit to proceed. 28 U.S.C.
§ 2255(h). However, his petition must be denied because the decision in Johnson does not
apply to his situation.
Petitioner was charged in this court with one count of conspiracy with intent to
distribute and to distribute cocaine and cocaine base, involving 5 kilograms or more of

1

cocaine and 50 grams or more of cocaine base and one count of possession with intent to
distribute cocaine. He was found guilty of both counts by a jury and was classified as a
career offender because he had two prior drug offenses. He was sentenced to a 360-month
term of imprisonment on each count.
Because the finding that defendant was a career offender was based on his two prior
controlled substance offenses, the holding in Johnson does not apply to him, even if I assume
that it would apply to a person who was not convicted of an offense involving firearms,
which is what Johnson was addressing. In Johnson, the defendant had been sentenced upon
a finding that he had committed a violent felony, as defined in 18 U.S.C. § 924(e)(2)(B) of
“violent felony.” Under the statute, this is a crime that carries a penalty of more than one
year and
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or
(ii) 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.
§ 924(e)(2)(B); § 4B1.2. (Italics added). Johnson was convicted of a violation of 18 U.S.C.
§ 922(g), which makes it a crime for a felon to possess a firearm; the question was whether
his previous conviction for unlawful possession of a short-barreled shotgun was a violent
felony within the meaning of § 924(e)(2)(B). The Supreme Court focused on the italicized
language in subsection (2), known as the residual clause, which the Court found was too
vague to satisfy the due process clause of the Constitution. “Our cases establish that the
Government violates [the due process clause of the Fifth Amendment] by taking away

2

someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary
people fair notice of the conduct it punishes, or so standardless that it invites arbitrary
enforcement.” The Court did not discuss any other portion of the definition. In particular,
it did not discuss any part of § 924(e)(2)(B) that increases the sentences for persons who
have committed controlled substances offenses or who have committed an offense listed in
subsection (i) or in the non-italicized portion of subsection (ii). Accordingly, I conclude that
petitioner’s motion for post conviction relief must be denied.
Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must
issue or deny a certificate of appealability when entering a final order adverse to a petitioner.
To obtain a certificate of appealability, the applicant must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). This means 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 quotations and citations omitted). Petitioner
has not made a substantial showing of a denial of a constitutional right so no certificate will
issue.
Petitioner is free to seek a certificate of appealability from the court of appeals under
Fed. R. App. P. 22, but that court will not consider his request unless he first files a notice
of appeal in this court and pays the filing fee for the appeal or obtains leave to proceed in
forma pauperis.

3

ORDER
IT IS ORDERED that petitioner Timothy Clark’s motion for post conviction relief
under 28 U.S.C. § 2255 is DENIED.

Further, IT IS ORDERED that no certificate of

appealability shall issue. Petitioner may seek a certificate from the court of appeals under Fed.
R. App. P. 22.
Entered this 14th day of September, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

4