United States District Court, E.D. Wisconsin
R.T. CLAY Petitioner-defendant,
UNITED STATES OF AMERICA Respondent-plaintiff. Criminal Case No. 01-CR-193
Clay, Petitioner, Pro Se.
States of America, Respondent, represented by Brian E.
Pawlak, United States Department of Justice & Mario F.
Gonzales, United States Department of Justice.
RULE 4 ORDER
ADELMAN, District Judge.
R.T. Clay moves to vacate his sentence pursuant to 28 U.S.C.
§ 2255, raising claims under Johnson v. United
States, 135 S.Ct. 2551 (2015). Johnson, which struck
down as unconstitutionally vague the so-called "residual
clause" of the Armed Career Criminal Act
("ACCA"), applies retroactively to cases on
collateral review. Welch v. United States, 136 S.Ct.
1257 (2016). Because Johnson has no impact on
petitioner's sentence, however, I deny his motion and
dismiss this action.
October 25, 2002, petitioner pled guilty to three counts:
racketeering, 18 U.S.C. § 1962(c); racketeering conspiracy,
18 U.S.C. § 1962(d); and conspiracy to distribute controlled
substances, 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & 846. The
racketeering counts were based on two predicate acts - a home
invasion armed robbery and a murder. See 18 U.S.C. § 1961(5)
(explaining that a "pattern of racketeering"
requires at least two acts of racketeering).
calculating petitioner's sentencing guideline range on
the racketeering counts, the pre-sentence report
("PSR") determined the offense level for each of
the predicate acts. See U.S.S.G. § 2E1.1(a)(2). On the
robbery, the PSR set the base offense level at 20, U.S.S.G. §
2B3.1(a), then added 7 levels because a firearm was
discharged, U.S.S.G. § 2B3.1(b)(2)(A), and 1 level because
the taking of a controlled substance was an object of the
robbery, U.S.S.G. § 2B3.1(b)(6), for an adjusted level of 28.
(PSR ¶¶ 38-44.) On the murder, the PSR set the offense level
at 43 under U.S.S.G. § 2A1.1(a). (PSR ¶ 45-50.) Finally, on
the drug count, the PSR set the base offense level at 36
based on a drug weight of 500 grams of crack cocaine,
U.S.S.G. § 2D1.1(c)(2) (2002), and added 2 levels for firearm
possession, U.S.S.G. § 2D1.1(b)(1) (2002), for an adjusted
level of 38. (PSR ¶¶ 51-56.) Applying the multi-count
adjustment under U.S.S.G. § 3D1.4, the PSR set the combined
adjusted level at 44, then subtracted 3 levels for acceptance
of responsibility, U.S.S.G. § 3E1.1, for a final level of 41.
(PSR ¶¶ 57-66.) The PSR determined that defendant did not
qualify as a career offender. (PSR ¶ 67.) He nevertheless
reached criminal history category VI based on 17 criminal
history points. (PSR ¶ 101.)
petitioner's February 6, 2003 sentencing hearing, I
adopted the PSR's calculations, which produced an
imprisonment range of 360-life. I impose a sentence of 360
months on each count running concurrently. Petitioner took no
appeal. On July 14, 2016, petitioner filed the instant motion
to vacate his sentence pursuant to 28 U.S.C. § 2255.
2255 provides a basis for attacking a federal sentence on the
grounds 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). Pursuant to Rule 4(b) of the Rules
Governing § 2255 Proceedings, the district court must conduct
a preliminary review of such motions:
If it plainly appears from the motion, any attached exhibits,
and the record of the prior proceedings that the moving party
is not entitled to relief, the judge must dismiss the motion
and direct the clerk to notify the moving party. If the
motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion or other
this screening Rule, the district court may dismiss a § 2255
action without holding a hearing or requiring the government
to respond if the motion and the files and records of the
case conclusively show that the petitioner is entitled to no
relief. Gallo-Vasquez v. United States, 402 F.3d
793, 797 (7th Cir. 2005). "In addition, a hearing is not
necessary if the petitioner makes allegations that are vague,
conclusory, or palpably incredible, ' rather than
detailed and specific.'" Martin v. United
States, 789 F.3d 703, 706 (7th Cir. 2015) (quoting
Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir.
§ 2255 motion, petitioner attacks his sentences on counts one
and two (the racketeering counts) under Johnson, alleging
that his "constitutional right to be placed on adequate
notice was violated because the residual clause is
unconstitutionally vague and violates due process."
(Motion at 2, 3.) He contends: "Count 1 fails to
categorically qualify as predicate act.... Therefore, this
Court must vacate Count 1 of the indictment for dismissal and
resentence petitioner accordingly." (Motion at 2.) And:
"Count 2 does not categorically qualify as a predicate
offense.... For all these reasons this Court must vacate and
dismiss Count 2 of the indictment and resentence petitioner
accordingly." (Motion at 3.)
struck down as unconstitutionally vague the residual clause
of the ACCA's definition of the term "violent
felony." See 18 U.S.C. § 924(e)(2)(B)(ii) (defining the
term, in part, as an offense that "otherwise involves
conduct that presents a serious potential risk of physical
injury to another"). Petitioner was not convicted under
the ACCA. While courts have held that Johnson applies to the
residual clause of similar "crime of violence"
provisions, see, e.g., United States v. Pawlak, 822
F.3d 902 (6th Cir. 2016) (career offender guideline);
United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir.
2015) (18 U.S.C. § 16(b)), petitioner makes no claim that any
statute or guideline applicable to his sentence contained a
residual clause. See Stanley v. United States, No. 15-3728,
2016 U.S.App. LEXIS 12182 (7th Cir. June 27, 2016)
(discussing the limits of Johnson). RICO predicates are
enumerated in ...