United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
21, 2016, Petitioner Dylan Thomas Post (“Post”)
filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255. (Docket #1). Post's sentence was increased
because he was deemed a career offender under the U.S.
Sentencing Guidelines (the “Guidelines”).
Id. at 2. A defendant is a “career
offender” when he has at least two prior convictions
for crimes of violence or involving a controlled substance.
U.S.S.G. § 4B1.1. The career offender designation in
Post's case was imposed by the definition of a
“crime of violence” found in Section 4B1.2(a) of
“crime of violence” is defined two ways. The
first is when a crime “has as an element the use,
attempted use, or threatened use of physical force against
the person of another.” Id. §
4B2.1(a)(1). The second is when a crime “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 emphasized
portion of the definition was referred to as the
“residual clause.” An identical residual clause was
found in the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)(2)(B)(ii). Johnson v. United
States, 135 S.Ct. 2551, 2556 (2015).
Post's prior convictions underlying his career offender
designation was for battery, which was considered a
“crime of violence” by way of the residual
clause. See United States v. Peters, 462 F.3d 716,
719-720 (7th Cir. 2006). In Johnson, the Supreme
Court found that the ACCA's residual clause was
unconstitutionally vague. Johnson, 135 S.Ct. at
2557. Post contends that the residual clause of the
Guidelines must be similarly invalidated. (Docket #1 at 3-6).
With the residual clause knocked out, Post then argues that
his battery offense also falls outside the ambit of the other
“crime of violence” definition quoted above,
known as the “force clause.” Id. at
6-16; U.S.S.G. § 4B2.1(a)(1).
argument with respect to vagueness had already been raised by
other defendants at the time he filed his motion. On August
29, 2016, in one such case, the Seventh Circuit agreed with
Post's position and found the Guideline's residual
clause to be vague. United States v. Hurlburt, 835
F.3d 715, 725 (7th Cir. 2016). However, on March 6, 2017, the
Supreme Court held that the Guidelines are not subject to
vagueness challenges, abrogating Hurlburt.
Beckles v. United States, 137 S.Ct. 886, 897 (2017).
days later, Respondent filed a letter-response to Post's
motion, asking that it be dismissed in light of
Beckles. (Docket #3). Post offered no reply;
instead, on March 17, 2017, he filed a motion to dismiss this
matter without prejudice pursuant to Federal Rule of Civil
Procedure (“FRCP”) 41(a)(2). (Docket #4). Later
that day, Respondent filed a letter asking that the Court
ignore Post's request for dismissal and decide this case
on its merits. (Docket #5).
41(a)(2) provides that “an action may be dismissed at
the plaintiff's request only by court order, on terms
that the court considers proper.” Fed.R.Civ.P.
41(a)(2). Post's request for dismissal without prejudice
(Docket #4) is improper, and his own brief explains why:
Before the Supreme Court issued the more recent
Johnson decision striking down the [ACCA's]
residual clause, the above analysis would have amounted to an
interesting intellectual exercise-not a claim for relief.
Even post-Johnson I, and post-Castleman,
Peters' holding that Wisconsin simple battery
was a crime of violence remained good law under the residual
clause. See Peters, 462 F.3d at 720. Indeed, the
very Indiana law at issue in Flores [a Seventh
Circuit case addressing a battery statute similar to
Wisconsin's]-criminalizing offensive touching that
results in bodily injury-was previously held to fit within
the residual clause. United States v. Johnson, 743
F.3d 1110, 1112 (7th Cir. 2014).
While the force clause looks only at the elements of the
offense as defined by state law, the residual clause (when
valid) required courts to imagine whether an imagined
“ordinary case” presented a serious potential
risk of injury. Johnson, 135 S.Ct. at 2557-58. There
would be no way to argue that the “ordinary case”
of simple battery is not risky. See Id. There are a
number of state appellate cases addressing simple battery as
applied to merely offensive acts, cited above, but many
others addressing the crime as applied to violent acts.
See, e.g., State v. Giwosky, 326 N.W.2d 232, 448
(Wis. 1982) (fist-fight). It may well be that most cases of
simple battery are nonviolent-that is, the kind of case that
would garner a fine or a time-served sentence and never
produce an appellate decision-but the petitioner couldn't
prove that. See Johnson, 135 S.Ct. at 2557
(“How does one go about deciding what kind of conduct
the ‘ordinary case' of a crime involves? A
statistical analysis of the state reporter? A survey? Expert
evidence? Google? Gut instinct?”) (internal quotation
marks and citation omitted). And even if he could, battery
would still doubtless present a risk of physical injury.
See Johnson, 743 F.3d at 1112 (holding that the
Flores statute fit within the residual clause).
But now, the [ACCA's] residual clause is off the table-
the Supreme Court has struck it down as unconstitutionally
vague. Johnson II, 135 S.Ct. at 2557. So Post's
battery under § 940.19(1)) [does not] qualify as [a]
crime of violence.
(Docket #1 at 16-17). Beckles precludes any
vagueness challenges to the Guidelines, and the residual
clause's vagueness, and concomitant invalidity, was the
lynchpin of Post's motion. With the lynchpin pulled,
Post's motion (Docket #1) must be dismissed on its merits
and with prejudice.
Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Post must make a
“substantial showing of the denial of a constitutional
right” by establishing that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). Further, when the Court has denied relief on
procedural grounds, the petitioner must show that jurists of
reason would find it debatable both that the “petition
states a valid claim of the denial of a constitutional
right” and that “the district court was correct
in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). In light of Beckles, the
Court cannot fairly conclude that reasonable jurists would
debate whether Post's motion should be decided
differently; as a consequence, the Court must deny him a
certificate of appealability.
the Court closes with some information about the actions that
Post may take if he wishes to challenge the Court's
resolution of this case. This order and the judgment to
follow are final. A dissatisfied party may appeal this
Court's decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within
thirty days of the entry of judgment. See Fed. R.
App. P. 3, 4. This Court may extend this deadline if a party
timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day
deadline. See Id. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The Court cannot extend this deadline. Id.
A party is expected to closely review all applicable rules
and determine what, if any, further action is appropriate in
IT IS ORDERED that Petitioner's motion to vacate, set
aside, or correct his sentence pursuant to Section 2255