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Everett v. United States

United States District Court, E.D. Wisconsin

May 15, 2017

UNITED STATES OF AMERICA, Respondent. Criminal No. 10-CR-167-2-JPS


          J.P. Stadtmueller U.S. District Judge.

         On 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.

         1. BACKGROUND

         In his 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. Id.

         On May 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.

         At the 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.[1]

         As 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.

         2. DISCUSSION

         2.1 Everett's Claims

         Against 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.

         The 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.

         2.2 Violation of Wis.Stat. § 346.04(3) is a Crime of Violence

         The 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.

         Wis. 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. ยง 346.04(1)-(2t). Based on the wording and structure of the statute, a violation of Subsection (3) is ...

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