United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
Petitioner Shane Bradley has filed a motion for post conviction relief under 28 U.S.C. § 2255. He contends that he should be resentenced in light of the United States Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015), declaring unconstitutionally vague a portion of the penalty provision of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2). Although petitioner was not sentenced under the Armed Career Criminal Act, he believes that the holding in Johnson applies to his sentence, because it was increased under a similar provision defining “career offenders” in the sentencing guidelines, U.S.S.G. § 4B1.
It is true that petitioner’s sentence was increased under § 4B1.2 of the sentencing guidelines’ career offender provision and that this provision had its origin in 18 U.S.C. § 924(e)(2), the penalty provision of the Armed Career Criminal Act. However, the determination that petitioner was a career offender did not depend on the specific portion of the guidelines at issue in Johnson (the residual clause in subsection (B)(ii) of § 924(e)(2)). Instead, petitioner’s sentence was based on a different guidelines provision adapted from subsection (i) of § 924(e)(2)(B), that the Supreme Court has never found unconstitutional. Thus, he has no viable claim under the holding in Johnson, even assuming that Johnson applies to sentences determined under the sentencing guidelines and is not limited to sentences imposed under the Armed Career Criminal Act.
Petitioner had a potentially meritorious challenge to his sentence as having been increased improperly under § 924(e)(2)(B)(i), but he is barred from raising that claim in this proceeding. Not only has too much time passed since he became aware of the probable error in his sentence, but he raised the claim once before, in 2009. This court denied the claim and the holding was affirmed by the court of appeals. 28 U.S.C. § 2244(b)(1) allows a prisoner in petitioner’s position only one opportunity to file a collateral attack.
A. Federal Charges against Petitioner
In 2003, petitioner Shane Bradley was charged in federal court with three counts of distribution of heroin. He entered into a plea agreement with the government and pleaded guilty to one of the three distribution counts. At sentencing, the court determined that he had three previous state felony convictions that made him a career offender under the then-mandatory sentencing guidelines: (1) delivery of marijuana in Jefferson County, Wisconsin, 92CF265; (2) possession of THC with intent to deliver and possession of drug paraphernalia in Rock County, 93 CF1096; and (3) “Felony Intimidate Victim and Threaten Force” under Wis.Stat. § 940.45(3) in Jefferson County, Wisconsin, 93CF158. This last statute criminalizes a range of behavior. In 1993, it and its companion statute, § 940.4, read as follows:
Wis. Stat. § 940.44. Except as provided in Section 940.45, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade, another person who has been the victim of any crime or who is acting on behalf of the victim from doing any of the following is guilty of a Class A misdemeanor: (1) making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.
Wis. Stat. 940.45. Whoever violates s. 940.44 under any of the following circumstances is guilty of a Class D felony:
(1) Where the act is accompanied by force or violence or attempted force or violence upon the victim, or the spouse, child, parent, sibling or grandchild of the victim or any person sharing a common domicile with the victim.
(2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under sub. (1).
(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1)
(Remaining subsections ...