United States District Court, E.D. Wisconsin
ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE (DKT. NO. 1), DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, DENYING PETITIONER'S MOTION TO DISMISS AS
MOOT (WITHOUT PREJUDICE)(DKT. NO. 4), AND DISMISSING
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
17, 2016, the petitioner filed a motion to vacate, set aside
or correct sentence. Dkt. No. 1. In his 2008 criminal case,
the petitioner had pled guilty to possessing with intent to
distribute cocaine base (in violation of 21 U.S.C.
§§841(a)(1) & (b)(1)(C)) and possessing a
firearm in furtherance of a drug trafficking offense (in
violation of 18 U.S.C. §924(c)). United States v.
Johnson, Case No. 08-cr-196-cnc (E.D. Wis.), Dkt. No.
49. Because he had two prior convictions in Milwaukee County
(robbery and burglary), the sentencing court concluded that
he was eligible for a sentencing enhancement as a career
offender U.S.S.G. §4B1.1(a), and that simple robbery
qualified as a crime of violence under
U.S.S.G.§4B1.2(a). On page three of the motion to
correct his sentence, the petitioner raised one ground for
relief: he argued that under Johnson v. United
States, 135 S.Ct. 2551 (2015), the residual clause in
U.S.S.G. §4B1.2 was void for vagueness.
government filed an unopposed motion to stay briefing pending
the United States Supreme Court's decision in Beckles
v. United States, 137 S.Ct. 886 (2017). Dkt. No. 3. On
May 6, 2017, the Supreme Court issued its decision in
Beckles, holding that the advisory sentencing
guidelines, including §4B1.2(a)'s residual clause,
are not subject to vagueness challenges under the Due Process
Clause. Beckles, 137 S.Ct. at 895. Soon after, the
petitioner filed a motion to dismiss without prejudice under
Federal Rule of Civil Procedure 41(a)(2). Dkt. No. 4.
extent that the petitioner has intentionally limited the
motion to correct his sentence to a single ground for relief
based on the “unconstitutionally vague guideline
provision” of the residual clause of U.S.S.G.
§4B1.2, dkt. no. 1 at 3, the court must deny the motion
regard to the defendant's motion to dismiss the petition:
Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), the potential effect of voluntary
dismissal of the petition would be no different from the
potential effect of a ruling on the merits. Under AEDPA, a
prisoner has one “single unencumbered opportunity to
pursue collateral review.” Vitrano v. United
States, 643 F.3d 229, 233 (7th Cir. 2011); 28 U.S.C.
§ 2255(h). Before filing a second or successive motion,
the prisoner must obtain certification to do so from the
court of appeals. Id. There is no requirement that
the court must adjudicate the first petition on the merits in
order for it to count as the prisoner's first motion.
Felder v. McVicar, 113 F.3d 696, 697 (7th Cir.
1997). A voluntary dismissal may operate as a decision on the
merits if the prisoner withdraws the motion because it has
become clear to him that the court will deny the motion on
the merits. Potts v. United States, 210 F.3d 770
(7th Cir. 2000).
Beckles acts as “handwriting on the wall,
” the court will deny the motion to correct the
sentence on the merits, and will deny the motion to dismiss
as moot. See Potts, 210 F.3d at 771 (motion was
second or successive when the petitioner had an opportunity
to receive a decision on the merits but flinched after
receiving the opposition brief and “seeing the
handwriting on the wall.”) The court declines to issue
a certificate of appealability, because after
Beckles, the petitioner cannot demonstrate that
reasonable jurists could debate whether the motion should
have been resolved in a different manner or that the issue
presented is adequate to deserve further encouragement. 28
U.S.C. § 2253(c)(2); Tennard v. Dretke, 542
U.S. 274, 282 (2004).
court DENIES petitioner's motion to vacate, set aside or
correct sentence. Dkt. No. 1. The court DECLINES TO ISSUE a
certificate of appealability. The court DENIES as moot
petitioner's motion to dismiss as moot, without
prejudice. Dkt. No. 4. The court DISMISSES the case.
 In arguing that simple robbery cannot
constitute a crime of violence under the residual clause, the
petitioner anticipates an argument that,
post-Johnson, the offense remains a crime of
violence under the force clause. See United States v.
Otero, 495 F.3d 393 (7th Cir. 2007). Eleven pages of the
petitioner's motion explain why the Seventh's
Circuit's force clause analysis in Otero is no
longer good law after Johnson I, and why it cannot
fit within the residual clause after Johnson II.
Because the Beckles Court rejected the
petitioner's vagueness challenge to the ...