United States District Court, E.D. Wisconsin
RULE 4 ORDER
ADELMAN, District Judge.
Lervon Campbell moves to vacate his sentence pursuant to 28
U.S.C. § 2255. Section 2255 permits a federal prisoner to
attack his sentence on the "ground that the sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a).
under § 2255 is available "only in extraordinary
situations, such as an error of constitutional or
jurisdictional magnitude or where a fundamental defect has
occurred which results in a complete miscarriage of
justice." Blake v. United States, 723 F.3d 870,
878-79 (7th Cir. 2013). A 2255 motion is neither a
recapitulation of nor a substitute for a direct appeal;
issues raised on direct appeal may not be reconsidered on a §
2255 motion absent changed circumstances. Varela v.
United States, 481 F.3d 932, 935 (7th Cir. 2007). Claims
omitted from the direct appeal are barred unless the prisoner
can show cause and prejudice for the default. See, e.g.,
Gant v. United States, 627 F.3d 677, 683 (7th Cir.
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
the district court must promptly examine a § 2255 motion. If
plainly appears the movant is not entitled to relief, the
judge must dismiss the motion. If the motion is not
dismissed, the judge must order the government to file a
pleaded guilty to unlawful possession of a firearm as a
felon. 18 U.S.C. § 922(g)(1). The parties agreed that, based
on petitioner's three prior burglary convictions, he
qualified for an enhanced sentence under the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and I
sentenced him to 180 months' imprisonment, the minimum
term required by the ACCA, running concurrently with the
remainder of a state sentence. Petitioner appealed, and the
Seventh Circuit remanded so I could determine whether to
adjust the sentence to account for time served on the
undischarged state sentence. United States v.
Campbell, 617 F.3d 958 (7th Cir. 2010).
remand,  I granted petitioner's request to
make the sentences fully concurrent, adjusting his sentence
downward to account for the time he already had served in
state prison. Petitioner appealed again, but his counsel
moved to withdraw under Anders v. California, 386
U.S. 738 (1967). The court of appeals invited petitioner to
comment on counsel's submission, but he did not respond.
United States v. Campbell, 422 Fed.Appx. 545, 546 (7th Cir.
2011). The only issue counsel considered raising was whether
petitioner could challenge my determination, at the initial
sentencing, that petitioner qualified for an enhanced
sentence under the ACCA. Id . Counsel considered
whether petitioner could argue that the ACCA did not apply
because his three qualifying burglary convictions did not
involve illegal entries of a "dwelling, " as
required under the sentencing guidelines. Id . The
court of appeals found this argument not only frivolous but
also waived because in his plea agreement petitioner
stipulated that he qualified as an armed career criminal for
having three qualifying burglary convictions. Id .
The court further concluded that the law-of-the-case doctrine
would preclude petitioner from challenging the ACCA penalty
for the first time in a successive appeal. Id .
Finally, the court concluded that even if petitioner could
raise the argument it would fail because burglary under the
ACCA includes breaking into structures not limited to
residential dwellings. Id . The court accordingly
granted counsel's motion to withdraw and dismissed the
instant motion, petitioner asserts:
Ineffective counsel. Burglary is not a crime of violence.
Drugs are not a crime of violence. I should have been
careered by a jury, unconstitutional.
There was error in my sentencing, plus unconstitutional.
My [predicate] offenses should have been applied by a jury.
Selling drug[s] is not a crime [of] violence. Burglary is ...