United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, District Judge
Petitioner Romelle Ross has been granted leave by the Court of Appeals for the Seventh Circuit to file a successive motion under 28 U.S.C. § 2255, challenging the sentence he is serving as having been calculated in error. Petitioner was convicted in 2006 of distributing five or more grams of crack cocaine and sentenced as a career offender after the court found that he had two prior convictions, one for a serious controlled substance offense and one for escape. He contends that he is entitled to resentencing as a result of the recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015), that the so-called residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. Although he was not sentenced under this particular provision, but under a provision in the sentencing guidelines based on the residual clause, he believes that the holding in Johnson applies to him. If he is correct, he will no longer be considered a career offender under the guidelines and will be eligible for resentencing.
Petitioner may be right in predicting that Johnson’s holding will be held applicable to sentences imposed under the provision of the sentencing guidelines adopting the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii). Even if he is correct, however, he is procedurally barred from bringing a new challenge to his sentence because he failed to take a direct appeal of his sentence and is unable to show cause and prejudice for this failure. In addition, he has challenged the same claim he wants to raise in this proceeding on numerous occasions in the past. Having done so, he cannot raise the claim again.
In September 2006, petitioner Romelle Ross entered a plea of guilty to a charge of distributing five or more grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). He was sentenced as a career offender to a sentence of 200 months, because he had two prior felony convictions, one for a serious controlled substance offense and one for escape. The drug conviction qualified as a predicate offense for career offender status under § 4B1.2(b); the escape conviction qualified under § 4B1.2(a)(2). At the time, the guidelines read as follows:
(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. [The italicized portion is generally referred to as the residual clause.]
(b) The term “controlled substance offense” means 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 did not take a direct appeal of his sentence, but in 2009, he filed a post conviction motion under 28 U.S.C. § 2255, in which he contended that because his escape conviction was not a crime of violence, he should not have been sentenced as a career offender. Mot. dkt. #30, 06-cr-132. In his motion, he relied on the Supreme Court’s decisions in Begay v. United States, 553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122 (2009). His motion was timely, but it was dismissed because he had failed to show that either Begay or Chambers applied retroactively to cases that had been closed before these cases were decided. Order, dkt. #6, 09-cv-779-bbc.
In 2010, petitioner filed a letter motion, “Motion/Petition to Redress Grievances as Right Protected by Constitution of USA.” Dkt. #10, 09-cv-779 The motion was construed as a successive motion filed pursuant to 28 U.S.C. § 2255 and dismissed because he had not obtained certification from the court of appeals to file a successive motion. Dkt. #11, 09-cv-779. Petitioner filed additional motions attacking his sentence, e.g., dkts. ##12, 20, 27, but these were either denied or dismissed as motions brought improperly under § 2255. He appealed one of them and also appealed an order denying him a certificate of appealability but later dismissed both appeals on his own. He filed two applications with the court of appeals seeking permission to file a successive § 2255 motion.
In November 2015, petitioner applied to the court of appeals to file a successive § 2255 petition in light of the holding in Johnson v. United States, 135 S.Ct. 2551 (2015), that the residual clause in the Armed Career Criminal Act, § 924(e)(2)(B)(ii) was unconstitutionally vague, despite the fact that his sentence was not increased under the Armed Career Criminal Act, but under the sentencing guidelines. This time, the court granted his motion, allowing him to file a successive § 2255 motion. Dkt. #32, 06-cr-132. He has since filed his authorized motion with the help of the federal defender.
Although the court of appeals authorized petitioner’s motion, it noted that the government had raised a number of defenses. Rather than rule on any of them, it left it to this court to address them “after adversarial testing, ” which the court of appeals could not accommodate in the 30-day period it had for ...