Taylor v. USA

Filing 3

ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255. Signed by District Judge Barbara B. Crabb on 6/12/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DAVID T. TAYLOR,
OPINION AND ORDER
Petitioner,
13-cr-154-bbc
17-cv-341-bbc

v.
UNITED STATES OF AMERICA,
Respondent.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner David T. Taylor has filed a motion for post conviction relief under 28
U.S.C. § 2255, asserting that he is entitled to a reduction in his 60-month sentence. A
review of his motion reveals no basis for his assertion, which means that his motion must be
denied.

BACKGROUND FACTS
Petitioner was indicted in 2013, charged with possession with intent to distribute
heroin and possession of a firearm in furtherance of a drug trafficking crime. After entering
a plea of guilty to a superseding indictment, he was sentenced on May 14, 2014 to a term
of 27 months on the distribution count and five years on the possession of a firearm charge
to run consecutively.
Petitioner did not appeal either his conviction or sentence. On May 8, 2017, he

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brought this motion, which he calls a “motion to dismiss conviction and vacate sentence for
count 4 (§ 924(c)(1)) under 28 U.S.C. § 2254."

OPINION
It is difficult to understand petitioner’s arguments in support of his claim that he is
entitled to a reduction in his sentence. For example, he argues that his conviction for
violating 18 U.S.C. § 924(c) is illegal “because the predicate offense of possession with
intent to distribute heroin under [21 U.S.C.] §841(a) does not qualify as a ‘crime of
violence’ as a matter of law.” Pet., dkt. #43-1, at 7. This statement makes no sense:
petitioner was sentenced for having committed a drug trafficking crime while possessing a
firearm. He was not sentenced for a “crime of violence.”
Petitioner has other arguments, but most are misdirected. He seems to believe that
his case involves many of the issues raised in Johnson v. United States, 135 S. Ct. 2551
(2015), but this is a mistake. The primary issue in Johnson turned on whether certain prior
convictions qualified as “violent felonies” justifying a sentence in excess of the statutory
maximum. It has no application to the crime committed by petitioner under 18 U.S.C. §
§ 924(c), which authorized higher sentences on persons who commit a crime of violence or
drug trafficking crime while carrying a firearm.

And, because Johnson concerned prior

convictions, the decision does not apply to petitioner’s convictions, which were imposed
together when he was sentenced in this court.

Thus, there is no reason to consider

petitioner’s arguments about when the statute of limitations starts running for claims raised

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under Johnson, such as who decides that question, whether Johnson applies to second or
successive petitions and how the statute should be interpreted.
I conclude, therefore, that petitioner is not entitled to relief under 28 U.S.C. § 2255.
His petitioner 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.
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.

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ORDER
IT IS ORDERED that petitioner David T. Taylor’s motion for post conviction relief
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 12th day of June, 2017.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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