Sharp v. USA

Filing 5

ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255; denying 2 Motion to Appoint Counsel. No certificate of appealability shall issue. Signed by District Judge Barbara B. Crabb on 8/25/2016. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - LEROY SHARP,

OPINION AND ORDER
Petitioner,
16-cv-473-bbc
08-cr-112-bbc

v.
UNITED STATES OF AMERICA,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Leroy Sharp has filed three motions: one for post conviction relief under
28 U.S.C. § 2255, dkt. #1, 16-cv-473; (dkt. #62, 08-cr-112); a second to hold his motion
in abeyance until the Court of Appeals for the Seventh Circuit has had an opportunity to
rule on his motion to file a second or successive motion for post conviction relief, dkt. #63,
08-cr-112; and a third for appointment of counsel to represent him on his motion. Dkt. #2.
All three motions will be denied.
Petitioner’s motion for post conviction relief will be denied because he has not shown
that he has any ground for relief. His second motion will be denied because the court of
appeals has ruled on his motion since he filed it and has determined that he can proceed
without an order from the court of appeals. Finally, I am denying petitioner’s motion for
appointment of counsel because it is clear from the pleadings and the record of his
conviction and sentencing that he has no possibility of success on his claim for relief.

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RECORD FACTS
In July 2008, petitioner Leroy Sharp was charged in this court with one count of
distribution of five grams or more of a mixture or substance containing cocaine base, or crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). The government later filed an information
advising petitioner of its intention to seek an enhanced penalty under 21 U.S.C. § 851, in
light of petitioner’s previous felony convictions.
In January 2009, petitioner entered a plea of guilty to the one count indictment. The
probation office prepared a presentence report, noting that the government was unable to
prove that petitioner had sold heroin and that it recommended holding him accountable for
only his two deliveries of crack cocaine to a co-defendant. The office recommended that
petitioner be found a career offender under U.S.S.G. § 4B1.1 because he was at least 18
years old at the time he committed the offense, his offenses were controlled substance
offenses and he had two prior convictions for either a crime of violence or a controlled
substance offense. It calculated petitioner’s prior criminal history at 37 minus 3 points for
acceptance of responsibility, making his offense level 34. His criminal history included two
prior convictions for a controlled substance offense: a 1995 offense for possession with
intent to deliver marijuana in violation of Wis. Stat. § 161.41(lm)(h)1 and a 2001 offense
of manufacture or delivery of 5 grams or less of cocaine, in violation of Wis. Stat. §
961.41(1)(cm)1. In addition, he had a 2001 conviction for battery by a prisoner, in
violation of Wis. Stat. § 940.20(1).
Under U.S.S.G. § 4B.1, two convictions for either controlled substance offenses or

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a crime of violence are sufficient for a finding by the court that a defendant is a career
offender. Petitioner had the requisite two convictions. Accordingly, his criminal history
category under the guidelines was VI.
In April 2009, petitioner was sentenced to a term of 240 months, slightly below the
bottom of his guideline range, which was 262-327 months. Petitioner appealed his sentence,
which was upheld after his appointed counsel advised the court of appeals that he could not
identify any nonfrivolous argument to pursue on appeal. Order, dkt. #54-1, 08-cr-112.
Petitioner never filed a motion for post conviction relief until he filed the present motion.

OPINION
The primary issue in this case is whether petitioner has any claim that he can pursue
in his post conviction motion. Petitioner argues that he is entitled to relief under the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), because the
Supreme Court held in that case that the residual clause in 18 U.S.C. § 924(e)(2)(B) of the
Armed Career Criminal Act was unconstitutionally vague.
A little background is necessary to understand petitioner’s claim. Section 924(e)
provides that persons who violate 18 U.S.C. § 922(g) of 18 U.S.C. Ch. 44 (Firearms) are to
receive enhanced sentences for their offenses if they have at least three prior convictions for
certain state or federal controlled substance offenses or for “violent felonies.” Subsection
(B) of § 924(e)(2) defines a “violent felony” as
any crime punishable by imprisonment for a term exceeding one year . . . that

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(i) has as an element the use, attempted use or threatened use
of physical force against the person of another [this is referred
to as the “elements” clause or the “force” clause]; or
(ii) is burglary, arson, or extortion, involves use of explosives
[known as the enumerated offense clause], or otherwise involves
conduct that presents a serious risk of physical injury to another”; [this
italicized clause is known generally as the “residual clause.”].
The federal sentencing guidelines borrowed much of the language in § 924(e)(2)(B)
to define a “crime of violence” in U.S.S.G. § 4B1.2. However, U.S.S.G. § 4B1.1 requires
only two prior convictions of either a crime of violence or a controlled substance offense as
a prerequisite for career offender status.
In Johnson, the Supreme Court focused on the last clause of the residual clause
(subsection (ii) of § 924(e)(2)(B)), finding problems with two features of the clause: (1) it
left “grave uncertainty about how to estimate the risk posed by a crime,” id. at 2557; and
(2) “[a]t the same time, [it left] uncertainty about how much risk it takes for a crime to
qualify as a violent felony.” Id. at 2558. This uncertainty led the Court to find the clause
unconstitutionally vague. In a later ruling, Welch v. United States, 136 S. Ct. 1257 (2016),
the Court held that Johnson had announced a substantive rule that applied retroactively on
collateral review.
Petitioner has no claim under Johnson for at least two reasons. First, it is not the case
that the Supreme Court found in Johnson v. United States, 135 S. Ct. 2551 (2015), that
battery by a prisoner counts as a crime of violence only under the “residual clause” in §
924(e)(2)(B)(ii). A prior conviction for committing battery by a prisoner by the use,
threatened use, or attempted use of physical force against the person of another qualifies as

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a violent felony under subsection (i) of § 924(e)(2)(B) or a crime of violence under § 4B1.2
of the guidelines.
Second, it is not necessary to consider whether petitioner’s prior conviction for
battery to a prisoner meets the criteria in subsection (i) because he has two prior convictions
for controlled substance offenses, which is sufficient to make him a career offender under the
guidelines. (He does not contend that either of these crimes did not meet the criteria for
“controlled substance offense” in U.S.S.G. § 4B1.2:
an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or
dispense.)
Petitioner’s second motion to hold his motion in abeyance is unnecessary, as
explained above. According to the court records, he never filed a motion for post conviction
relief in this court before filing his present motion. The Court of Appeals for the Seventh
Circuit has ruled that the motion now before this court is the first motion petitioner has filed
under § 2255. He does not need permission from the court of appeals to proceed on this
motion.
Finally, there is no reason to appoint counsel for petitioner in this case. The federal
defender’s office declined to represent petitioner after reviewing his motion and it is clear
from the record that petitioner has no viable claim for post conviction relief.
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.

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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). Defendant
has not made a substantial showing of a denial of a constitutional right so 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.

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.

ORDER
IT IS ORDERED that petitioner Leroy Sharp’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

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Fed. R. App. P. 22.
Entered this 25th day of August, 2016.

BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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