United States District Court, W.D. Wisconsin
WALTER R. BURNLEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
BARBARA B. CRABB, District Judge.
Walter R. Burnley is moving for post conviction relief under
28 U.S.C. Â§ 2255, challenging the 262-month sentence imposed
on him in 2007 for four counts of bank robbery in violation
of 18 U.S.C. Â§ 2113(a). He was sentenced as a career offender
because he had two prior convictions, one for reckless injury
and another for substantial battery, which qualified as
"crimes of violence" under the sentencing
guidelines at the time he was sentenced.
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 the
Armed Career Criminal Act, 18 U.S.C. Â§ 924(e)(2)(B)(ii), is
unconstitutionally vague. He was not sentenced under the
Armed Career Criminal Act, but he was sentenced under the
career offender guidelines, which are based on the provisions
of Â§ 924(e)(2)(B) that have now been found unconstitutional.
the Court of Appeals for the Seventh Circuit has not decided
whether the Johnson decision requires resentencing of career
offenders like petitioner, it has not yet granted a request
for a resentencing of a career offender. Its reasoning has
been that, unlike persons found to have prior convictions for
crimes of violence under Â§ 924(e)(2)(B)(ii) whose sentences
must be reduced to comply with the holding in Johnson,
persons who were sentenced as career offenders do not face a
sentence in excess of the statutory maximum. This approach
has two exceptions: when the challenge to the career offender
determination is raised on direct appeal or when the
petitioner was sentenced under the guidelines while they were
mandatory. Petitioner has not shown that his case falls into
either of those exceptions. Accordingly, I will deny his
motion for post conviction relief.
Walter R. Burnley was charged with five counts of bank
robbery. He went to trial on four of the counts after the
government dismissed and was convicted of all four counts. On
February 7, 2007, he was given a guideline sentence of 262
months of imprisonment. He was found to be a career offender
under the sentencing guidelines, U.S.S.G. Â§ 4B1.1 because he
had two prior convictions for "crimes of violence":
a prior conviction for a state offense of first-degree
reckless injury and another for substantial battery. Section
4B1.1(a) defines such crimes 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 and is taken verbatim from 18
U.S.C. Â§ 924(e)(2)(B)(ii).]
guidelines' definition of crime of violence is taken from
the definition of "violent felony" in Â§
took a direct appeal of his sentence, contending that the
evidence was insufficient to show that either he or his
accomplice had used force or intimidation to obtain the money
they stole. The court of appeals denied the appeal, finding
that the jury had had sufficient evidence from which to reach
its decision. It noted that petitioner had not raised
insufficiency of the evidence as a ground for a judgment of
acquittal in the trial court and concluded that his
convictions did not amount "to a manifest miscarriage of
justice." United States v. Burnley, 533 F.3d
901, 903 (7th Cir. 2008).
sought post conviction relief under 28 U.S.C. Â§ 2255 in
September 2009, contending that both his trial and his
appellate counsel had been ineffective. His motion was denied
by this court and no certificate of appealability issued.
Petitioner appealed the district court's ruling but the
court of appeals found the appeal untimely and dismissed it
for lack of jurisdiction. Burnley v. United States, No.
10-2919 (7th Cir. 2010).
filed another motion for post conviction relief under Â§ 2255
in June 2014, citing Descamps v. United States, 133
S.Ct. 2276 (2013), and arguing that he should not have been
sentenced as a career offender because neither of his prior
convictions (first-degree reckless injury and substantial
battery) was categorically a crime of violence under the
sentencing guidelines. This court dismissed petitioner's
2014 motion because it was a successive motion and had been
filed without the necessary certification of a panel of the
court of appeals. 28 U.S.C. Â§ 2255(h). Petitioner appealed,
but his appeal was denied. Later, he filed a motion for
relief under 28 U.S.C. Â§ 2241 in the United States District
Court for the Eastern District of California. This motion was
dismissed and petitioner was not granted leave to appeal.
October 14, 2015, petitioner filed an application for leave
to file a successive Â§ 2255 petition under Johnson, 135 S.Ct.
2251. A panel of the Court of Appeals for the Seventh Circuit
gave him permission to do so. He filed his ...