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Ball v. United States

United States District Court, E.D. Wisconsin

December 14, 2017

BOBBY D. BALL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE (DKT. NO. 1), DENYING AS MOOT MOTION TO AMEND MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DKT. NO. 10), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

          HON. PAMELA PEPPER United States District Judge

         I. Background

         A. Procedural History

         On February 29, 2016, petitioner Bobby D. Ball filed a motion under 28 U.S.C. §2255, asking the court to vacate, set aside or correct his sentence. Dkt. No. 1. The petitioner listed three grounds for relief: (1) that he was “actually innocent” as to his sentence enhancement as a “career offender” because of the Supreme Court's ruling in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015); (2) that the career offender enhancement is unconstitutional; and (3) that his lawyer provided ineffective assistance of counsel under the Sixth Amendment. Dkt. No. 1 at 1-8. The government responded on January 9, 2017, alleging that only the petitioner's Johnson claim was properly before the court, and that the court should dismiss the other claims as untimely. Dkt. No.

         A month and a half later, the petitioner filed a motion to amend the §2255 motion, along with the proposed amendment. Dkt. No. 10. The proposed amendment added case law support for the proposition that his prior Wisconsin robbery conviction should not qualify as a “crime of violence” under the career offender provision of the guidelines after Johnson. Dkt. No. 10 at 2.

         The government did not file a pleading opposing the motion. Instead, the prosecutor wrote the court a letter. The letter stated:

In this case, defendant filed a 2255 petition alleging that his conviction for aggravated battery could not be used to enhance his sentence under the residual clause of the career offender guideline because the guideline was void for vagueness under the rule announced in Johnson. The government filed a response and the defendant then sought to amend his petition to allege that his robbery convictions also could not be used to enhance his sentence under the rule of Johnson. Subsequently, in Beckles v. United States, 137 S.Ct. 886 (2017), the Supreme Court held that the advisory sentencing guidelines are not subject to void for vagueness challenges. Defendant was sentenced under the advisory guidelines. Accordingly, there is no basis for defendant to challenge his sentence under the rule of Johnson and his petition must be dismissed.

Dkt. No. 12.

         B. Factual Background

         The petitioner seeks to collaterally attack the sentence that Judge Charles N. Clevert, Jr. imposed in Case No. 13-cr-13-CNC (E.D. Wis.). The defendant had pled guilty to one count of distributing heroin in violation of 21 U.S.C. §841(a)(1) and (b)(1)(C), and one count of distributing marijuana in violation of 21 U.S.C. §841(a)(1) and (b)(1)(D). See Dkt. No. 1 at 1; see also Case No. 2013-cr-13-CNC (E.D. Wis. Aug. 22, 2013), Dkt. No. 21 at 1. At sentencing, Judge Clevert found that the defendant qualified as a career offender under U.S.S.G. §4B1.1, and calculated the petitioner's sentencing range at 151 to 188 months. On August 20, 2013, Judge Clevert imposed a sentence of 144 months - slightly below the low end of that guideline range. Dkt. No. 9 at 1; see also Case No. 13-cr-13-CNC, Dkt. No. 19 at ¶69 (E.D. Wis. Aug. 6, 2013). The petitioner did not appeal his conviction or sentence. Dkt. No. 1 at 1, ¶8.

         II. Analysis

         A. The Petitioner's Claims Regarding the Constitutionality of U.S.S.G. §4B1.1 and Ineffective Assistance of Counsel Are Time-Barred.

         Section 28 U.S.C. §2255 allows a federal prisoner to ask the court that imposed his sentence to vacate, set aside, or correct it “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. §2255(a).

         Section 2255(f) says that someone who wants to file a §2255 motion has to do so within a one-year ...


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