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Sharp v. United States

United States District Court, W.D. Wisconsin

August 25, 2016

LEROY SHARP, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge

         Petitioner 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 be denied.

         Petitioner's 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.

         RECORD FACTS

         In July 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.

         In 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).

         Under 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.

         In 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.

         OPINION

         The 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 unconstitutionally vague.

         A 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 ...

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