United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge
Leroy Sharp has filed three motions: one for post conviction
relief under 28 U.S.C. § 2255, dkt. #1, 16-cv-473; (dkt.
#62, 08-cr-112); a second to hold his motion in abeyance
until the Court of Appeals for the Seventh Circuit has had an
opportunity to rule on his motion to file a second or
successive motion for post conviction relief, dkt. #63,
08-cr-112; and a third for appointment of counsel to
represent him on his motion. Dkt. #2. All three motions will
motion for post conviction relief will be denied because he
has not shown that he has any ground for relief. His second
motion will be denied because the court of appeals has ruled
on his motion since he filed it and has determined that he
can proceed without an order from the court of appeals.
Finally, I am denying petitioner's motion for appointment
of counsel because it is clear from the pleadings and the
record of his conviction and sentencing that he has no
possibility of success on his claim for relief.
2008, petitioner Leroy Sharp was charged in this court with
one count of distribution of five grams or more of a mixture
or substance containing cocaine base, or crack cocaine, in
violation of 21 U.S.C. § 841(a)(1). The government later
filed an information advising petitioner of its intention to
seek an enhanced penalty under 21 U.S.C. § 851, in light
of petitioner's previous felony convictions.
January 2009, petitioner entered a plea of guilty to the one
count indictment. The probation office prepared a presentence
report, noting that the government was unable to prove that
petitioner had sold heroin and that it recommended holding
him accountable for only his two deliveries of crack cocaine
to a co-defendant. The office recommended that petitioner be
found a career offender under U.S.S.G. § 4B1.1 because
he was at least 18 years old at the time he committed the
offense, his offenses were controlled substance offenses and
he had two prior convictions for either a crime of violence
or a controlled substance offense. It calculated
petitioner's prior criminal history at 37 minus 3 points
for acceptance of responsibility, making his offense level
34. His criminal history included two prior convictions for a
controlled substance offense: a 1995 offense for possession
with intent to deliver marijuana in violation of Wis.Stat.
§ 161.41(lm)(h)1 and a 2001 offense of manufacture or
delivery of 5 grams or less of cocaine, in violation of
Wis.Stat. § 961.41(1)(cm)1. In addition, he had a 2001
conviction for battery by a prisoner, in violation of
Wis.Stat. § 940.20(1).
U.S.S.G. § 4B.1, two convictions for either controlled
substance offenses or a crime of violence are sufficient for
a finding by the court that a defendant is a career offender.
Petitioner had the requisite two convictions. Accordingly,
his criminal history category under the guidelines was VI.
April 2009, petitioner was sentenced to a term of 240 months,
slightly below the bottom of his guideline range, which was
262-327 months. Petitioner appealed his sentence, which was
upheld after his appointed counsel advised the court of
appeals that he could not identify any nonfrivolous argument
to pursue on appeal. Order, dkt. #54-1, 08-cr-112. Petitioner
never filed a motion for post conviction relief until he
filed the present motion.
primary issue in this case is whether petitioner has any
claim that he can pursue in his post conviction motion.
Petitioner argues that he is entitled to relief under the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), because the Supreme Court
held in that case that the residual clause in 18 U.S.C.
§ 924(e)(2)(B) of the Armed Career Criminal Act was
little background is necessary to understand petitioner's
claim. Section 924(e) provides that persons who violate 18
U.S.C. § 922(g) of 18 U.S.C. Ch. 44 (Firearms) are to
receive enhanced sentences for their offenses if they have at
least three prior convictions for certain state or federal
controlled substance offenses or for “violent
felonies.” Subsection (B) of § 924(e)(2) defines a
“violent felony” as
any crime punishable by imprisonment for a term exceeding one
year . . . that
(i) has as an element the use, attempted use or threatened
use of physical force against the person of another [this is
referred to as the “elements” clause or the
“force” clause]; or
(ii) is burglary, arson, or extortion, involves use of
explosives [known as the enumerated offense clause], or
otherwise involves conduct that presents a serious risk
of physical injury to another”; [this italicized
clause is ...