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Davis v. United States

United States District Court, E.D. Wisconsin

July 21, 2017

CARL LEO DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge.

         On June 17, 2016, Petitioner Carl Leo Davis filed a motion pursuant to 28 U.S.C. § 2255 challenging his sentence as a career offender under §§ 4B1.1 and 4B1.2 of the United States Sentencing Guidelines for a series of armed bank robberies he committed some twenty-five years earlier. He argues that the residual clause of the career offender provision of the Guidelines is unconstitutionally vague in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), and that he would not otherwise qualify as a career offender under the Guidelines.

         This case was stayed on August 10, 2016 to await the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). The Supreme Court issued its decision in Beckles on March 6, 2017. This court subsequently lifted the stay, and the parties completed briefing in this matter. For the following reasons, I find that Davis' § 2255 motion was not filed within the one-year limitation period set forth in 28 U.S.C. § 2255(f)(1). Therefore, his motion will be denied and the case dismissed.

         BACKGROUND

         In 1991, Davis was charged with six counts of armed bank robbery, being a felon in possession of a firearm, and using a firearm to commit a crime of violence in violation of 18 U.S.C. § 924(c). See Case No. 91-cr-253 (E.D. Wis.). He was 27 years old at the time. Pursuant to his plea agreement with the government, Davis pled guilty to two counts of bank robbery by the use of a dangerous weapon and two counts of use of a firearm to commit a crime of violence. In exchange, the government agreed to dismiss the remaining counts. As part of the plea agreement, Davis admitted that he had two prior convictions under Wisconsin law at the time of his sentencing-robbery and armed robbery-which made him a career offender under the United States Sentencing Guidelines.

         According to the sentencing table in the Guidelines, which were mandatory at the time of Davis' sentencing, the appropriate sentence for a career offender charged with bank robbery by use of a dangerous weapon was 210 to 262 months. Judge Terence Evans imposed a sentence that was on the low end of the Guidelines' range, sentencing Davis to 210 months for the bank robbery charges to run concurrently. The court also sentenced Davis to the mandatory minimum 60 months for the charge of possession of a firearm to commit a crime of violence, to run consecutive to the bank robbery charges, and to the mandatory minimum 240 months for the second charge of possession of a firearm, to run consecutive to the other charges. In all, the court imposed a sentence of 510 months, or 42½ years, of incarceration. Davis did not appeal his sentence or judgment of conviction. On April 7, 1993, Davis' bank robbery sentence was reduced by 57% to 120 months, reducing his total sentence to 35 years.

         On April 19, 2013, Davis wrote a letter to the court, indicating that after 22 years in prison he was a changed man and requested that the court reduce his sentence. Judge Charles Clevert, Jr., to whom the case had been reassigned, responded to Davis' letter, noting that he had no authority to modify Davis' sentence. On September 23, 2013, Davis filed a motion pursuant to Federal Rule of Civil Procedure 60(b), arguing that he should not be considered a career offender in light of the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013). The court denied Davis' motion because Rule 60(b) does not apply in criminal cases. The court explained that the proper avenue to challenge his sentence is through 28 U.S.C. § 2255. Davis responded to the court's order through a letter, indicating that he would have filed a § 2255 motion to vacate, set aside, or correct his sentence if he had known that was what he needed to do. The court sent Davis the district's standard form for filing a § 2255 motion to provide clarity if Davis chose to file such a motion. Davis never filed a § 2255 motion, but on August 27, 2015, moved for the appointment of counsel to litigate a claim pursuant to the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). His request was forwarded to the Federal Defender Services of Wisconsin, Inc., who assisted Davis in filing the current § 2255 motion.

         ANALYSIS

         Habeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations. Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993). Relief under § 2255 is “limited to an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect, which inherently results in a complete miscarriage of justice.” Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994). The government argues that Davis' petition should be dismissed for three reasons: (1) Davis' attack upon a decades-old conviction is time-barred and does not fall within any of the exceptions to the one-year statute of limitations; (2) Davis has procedurally defaulted a collateral attack on the vagueness of the career-offender guideline by not raising such an argument in a direct appeal; and (3) Davis' challenge pursuant to the Supreme Court's holding in Johnson does not survive the Court's recent decision in Beckles. For the reasons below, I find that Davis' motion is barred by the one-year limitation period in 28 U.S.C. § 2255(f)(1). I therefore decline to address the government's alternative arguments.

         As a threshold matter, the government asserts that Davis' § 2255 motion to vacate, set aside, or correct his sentence is untimely. Because Davis filed his petition more than two decades after his sentence and judgment of conviction became final, his petition would ordinarily be barred pursuant to § 2255(f)(1)'s one-year limitation period. Yet, the initial date of the limitation period may change depending on one of four possible scenarios. § 2255(f)(1)-(4). Davis relies on § 2255(f)(3) to support his assertion that his motion is not untimely. Section 2255(f)(3) provides that the one-year limitation period can also run from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” § 2255(f)(3). He asserts that his motion is timely because he filed it within one year of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which he argues established a new “right” applicable to his case.

         In Johnson, the petitioner pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Id. at 2556. Prior to sentencing, the government requested an enhanced sentence in accordance with the Armed Career Criminal Act (ACCA), arguing that three of the petitioner's previous offenses-including his unlawful possession of a short-barreled shotgun in violation of Minn. Stat. § 609.67-qualified as violent felonies within the meaning of the Act. Id. Under the sentencing regime established by the ACCA, “a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a ‘violent felony.'” Id. at 2555. In fact, the ACCA dramatically increases the penalties for simple possession of a firearm by a felon from a maximum term of ten years to a mandatory minimum term of fifteen years. 18 U.S.C. § 924(e)(1).

         The ACCA defines “violent felony” as

any crime punishable by imprisonment for a term exceeding one year . . . that-(i) has an element the use, attempted use, or threatened use of physical force against the person of another or (ii) is burglary, arson, or extortion, involved use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). This italicized portion is known as the ACCA's residual clause. Johnson, 135 S.Ct. at 2556. The district court in Johnson found that the petitioner's previous offenses qualified as violent felonies under the residual clause and sentenced him to a fifteen-year prison term. Id. In his petition for certiorari, the petitioner challenged whether Minnesota's offense of unlawful possession of a short-barreled shotgun is a violent felony under the ACCA's residual clause. After the initial oral argument, the Court invited the ...


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