Taylor-Young v. USA

Filing 11

ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255; denying 2 Motion for Production of Transcripts; denying 3 Motion for Leave to Proceed in forma pauperis. No certificate of appealability shall issue. Signed by District Judge William M. Conley on 10/26/2017. (arw)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN DONNIE LEE TAYLOR-YOUNG, Petitioner, OPINION & ORDER v. 16-cv-438-wmc 12-cr-147-wmc UNITED STATES of AMERICA, Respondent. Petitioner Donnie Lee Taylor-Young has filed a motion for post-conviction relief under 28 U.S.C. § 2255.1 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 the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), violated the due process clause of the Fifth Amendment. Because the decision in Johnson does not apply to his situation, however, his petition must be denied. OPINION Under § 924(e), a defendant is subject to a significantly greater sentence if the court finds that, among other things, the defendant has three prior felonies for either a violent felony or serious drug offense. A “violent felony” is defined as a crime 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 of a dwelling, arson, or extortion, involves use of 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). 1 1 explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. § 924(e)(2)(B) (emphasis added). In Johnson, the Supreme Court found the italicized language at the end of subsection (ii) above -- the so-called “residual clause” -- is too vague to satisfy due process guaranteed by the United States Constitution. The Supreme Court subsequently held that Johnson applies retroactively. Welch v. United States, 136 S. Ct. 1257 (Apr. 18, 2016). While petitioner believes that Johnson applies, his sentence did not arise under § 924(e)(2)(B)(ii). Following an indictment for brandishing a firearm during a robbery, he pled guilty to use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). Accordingly, he was sentenced under that statute, which neither implicates § 924(e)(2)(B) nor involves consideration of past crimes. But that does not resolve this question because the Seventh Circuit has held that the reasoning in Johnson applies to convictions under § 924(c) that included an enhancement under § 924(c)(3)(B). United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016). Under § 924(c)(1), a mandatory minimum sentence applies to “any person who, during and in relation to any crime of violence or drug trafficking crime” uses or carries a firearm. Unlike the definition of a “violent felony” considered by the Court in Johnson, a “crime of violence” is defined as a felony offense that: (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 2 § 924(c)(3). In Cardena, the Seventh Circuit acknowledged that the definition of “crime of violence” under subsection (B) is “virtually indistinguishable” from the residual clause addressed in Johnson and held that enhancements under subsection (B) would be unconstitutional. Cardena, 842 F.3d at 996. However, the court likewise held that an enhancement under subsection (A) may be sustained. While this left the question of whether a Hobbs Act robbery falls under § 924(c)(3)(A) or (B), the Seventh Circuit also answered this question in the affirmative in United States v. Anglin, 846 F.3d 954, 964-65 (7th Cir. 2017) (“Hobbs Act robbery is a ‘crime of violence’ within the meaning of § 923(c)(3)(A).” (emphasis added)), remanded on other grounds, No. 16-9411,  U.S. , 2017 WL 2378833 (U.S. Oct. 2, 2017). Given that Taylor-Young pled guilty to a Hobbs Act robbery, he waived this challenge. See United States v. Wheeler, 857 F.3d 743, 744 (7th Cir. 2017) (“[A] person who pleads guilty to a § 924(c) charge cannot use Johnson and Cardena to reopen the subject.”). Regardless, the holdings in Johnson, Welch, and Cardena have no impact on his sentence, and his petition must be denied. As such, the court will also deny his pending motions (dkts. #2, #3) as moot. 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.” 542 U.S. 274, 282 (2004). 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 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 3 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). Because Taylor-Young has not made a substantial showing of a denial of a constitutional right, no certificate will issue. Although the rule allows a court to ask the parties to submit arguments on whether a certificate should issue, it is not necessary to do so in this case because the question is not a close one. Taylor-Young 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. ORDER IT IS ORDERED that petitioner Taylor-Young’s motion for post-conviction relief under 28 U.S.C. § 2255, the Motion for Production of Transcripts (dkt. #2), and Motion for Leave to Proceed In Forma Pauperis (dkt. #3) are all DENIED. IT IS FURTHER ORDERED that no certificate of appealability shall issue. Taylor-Young may seek a certificate from the court of appeals under Fed. R. App. P. 22. Entered this 26th day of October, 2017. BY THE COURT: /s/ ________________________________________ WILLIAM M. CONLEY District Judge 4

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