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Burnley v. United States

United States District Court, W.D. Wisconsin

June 14, 2016

WALTER R. BURNLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge.

         Petitioner Walter R. Burnley is moving for post conviction relief under 28 U.S.C. § 2255, challenging the 262-month sentence imposed on him in 2007 for four counts of bank robbery in violation of 18 U.S.C. § 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.

         Petitioner 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. § 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 § 924(e)(2)(B) that have now been found unconstitutional.

         Although 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 § 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.

         RECORD FACTS

         Petitioner 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. § 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. § 924(e)(2)(B)(ii).]

         The guidelines’ definition of crime of violence is taken from the definition of “violent felony” in § 924(e)(2)(B).

         Petitioner 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).

         Petitioner sought post conviction relief under 28 U.S.C. § 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).

         Petitioner filed another motion for post conviction relief under § 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. § 2255(h). Petitioner appealed, but his appeal was denied. Later, he filed a motion for relief under 28 U.S.C. § 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.

         On October 14, 2015, petitioner filed an application for leave to file a successive § 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 motion on March 4, 2016, with the assistance of the federal defender.

         OPINION

         Although the court of appeals authorized petitioner’s motion, in doing so, it noted that the government had raised a number of defenses, among them that petitioner had defaulted his vagueness argument and that his application was barred by 18 U.S.C. § 2244(b)(1). Rather than rule on any of these arguments, the court of appeals left it to this court to address them “after adversarial testing, ” which the court of appeals could not accommodate in ...


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