United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
April 12, 2017, Laneer Everett (“Everett”) filed
a motion pursuant to 28 U.S.C. § 2255, asserting that
his conviction and sentence were imposed in violation of the
Constitution. (Docket #1). The Court now turns to screening
Everett's motion under Rule 4 of the Rules Governing
Section 2255 Proceedings, which requires the Court to
promptly examine the motion and dismiss it “[i]f it
plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that [Everett] is not
entitled to relief.” For the reasons stated below, the
Court finds that Everett presents no colorable basis for
habeas relief and, as a result, his motion must be denied.
criminal case, Everett was charged by indictment with one
count of Hobbs Act robbery, in violation of 18 U.S.C.
§§ 1951 and 2; one count of conspiracy to
distribute cocaine, in violation of 21 U.S.C. §§
846, 841(b)(1)(A), and 2; one count of possession of a
firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(I); and one count of
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2). (Case No. 10-CR-167-2,
Docket #9). On May 6, 2011, he agreed to plead guilty to the
narcotics offense. (Case No. 10-CR-167-2, Docket #86). The
other counts were dismissed by agreement with the government.
17, 2012, judgment was entered on Everett's offense of
conviction. (Case No. 10-CR-167-2, Docket #154). He was
sentenced to 180 months of imprisonment and 5 years of
supervised release. Id. at 2-3. In his presentence
investigation report, which the Court adopted at sentencing,
Everett was assessed the career-offender enhancement under
U.S. Sentencing Guideline § 4B1.1. That Guideline
provides that those who qualify as “career
offenders” must be given certain offense level and
criminal history category increases. U.S.S.G. §
4B1.1(b). A defendant is a career offender if (1) he was at
least eighteen years old at the time he committed the instant
offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at
least two prior felony convictions for either a crime of
violence or a controlled substance offense. Id.
§ 4B1.1(a). As will be explained further below, in this
case Everett challenges the third element, arguing that he
does not have enough qualifying predicate offenses to be
considered a career offender.
time Everett was sentenced, the term “crime of
violence” as used in the Guidelines was defined as
“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.” Id. § 4B1.2(a) (emphasis
added). The italicized portion of this definition is known as
the “residual” clause.
noted in Everett's presentence investigation report, he
has three prior felony convictions considered to form
predicates for his career-offender enhancement. One is
delivery of cocaine, in violation of Wisconsin state law,
which undoubtedly counts as a “controlled substance
offense” under U.S.S.G. § 4B1.2(a)(3) (and Everett
does not argue otherwise). See U.S.S.G. §
4B1.2(b). The other two convictions are for fleeing/eluding a
police officer as an operator of a vehicle, in violation of
Wis.Stat. § 346.04(3). These offenses were viewed at
sentencing as crimes of violence under the residual clause of
U.S.S.G. § 4B1.2(a)(2). Without these offenses counted
into the analysis, Everett would not have enough predicate
offenses to qualify for the career- offender enhancement.
this backdrop, the Court analyzes Everett's present
motion. Initially, Everett acknowledges that his motion falls
well outside the one-year limitations period for motions
under Section 2255, whether considered in relation to the
date his conviction became final or when the time period for
filing a challenge under Johnson v. United States,
135 S.Ct. 2551 (2015), expired. See (Docket #1 at
4-5); 28 U.S.C. § 2255(f). He claims that the
limitations period should be tolled because his counsel
prevented him from learning the facts supporting his claims.
(Docket #1 at 4). In the motion, Everett raises two claims.
First, he asserts that his counsel was constitutionally
ineffective for failing to file a motion challenging his
career- offender enhancement under the Guidelines in light of
Johnson, since his Wisconsin vehicular flight
convictions are not crimes of violence and should not have
been considered predicates for purposes of the enhancement.
Id. at 9-11. Second, Everett contends that because
he does not qualify as a career offender under the
Guidelines, he is entitled to a two-point offense level
reduction under Amendment 782 to the Guidelines as to his
narcotics conviction. Id.
Court need not reach the question of whether Everett's
counsel was constitutionally ineffective, however, because
neither of Everett's underlying claims has any merit, and
so his counsel cannot have been ineffective for failing to
present them. See Strickland v. Washington, 466 U.S.
668, 694 (1984) (in order to prove ineffective assistance of
counsel, the movant must show that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different”); Ross v. United States,
339 F.3d 483, 492 (7th Cir. 2003) (“When applying
Strickland, if we can more easily dispose of an
ineffective assistance claim based on lack of prejudice, we
should follow that route.”). The Court discusses each
claim in turn.
Violation of Wis.Stat. § 346.04(3) is a Crime of
main thrust of Everett's motion is that his prior
convictions for vehicular flight, in violation of Wis.Stat.
§ 346.04(3), are not crimes of violence under the
Guidelines' definition and should not have formed
predicates for his career-offender enhancement. (Docket #1 at
9-10). His position is incorrect. To start, the Wisconsin
vehicular flight statute provides, in relevant part, that
no operator of a vehicle, after having received a visual or
audible signal from a traffic officer, or marked police
vehicle, shall knowingly flee or attempt to elude any traffic
officer by willful or wanton disregard of such signal so as
to interfere with or endanger the operation of the police
vehicle, or the traffic officer or other vehicles or
pedestrians, nor shall the operator increase the speed of the
operator's vehicle or extinguish the lights of the
vehicle in an attempt to elude or flee.
Stat. § 346.04(3). This statute also prohibits, in
separate subsections, mere failure to comply with a traffic
officer's direction by any person, disobedience to such a
signal by a driver of a vehicle, and knowing resistance to
such a signal by failing to stop “as promptly as safety
reasonably permits.” Id. §
346.04(1)-(2t). Based on the wording and structure of the
statute, a violation of Subsection (3) is ...