United States District Court, E.D. Wisconsin
BOBBY D. BALL, Petitioner,
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
PAMELA PEPPER United States District Judge
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.
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.
government did not file a pleading opposing the motion.
Instead, the prosecutor wrote the court a letter. The letter
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.
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.
The Petitioner's Claims Regarding the
Constitutionality of U.S.S.G. §4B1.1 and
Ineffective Assistance of Counsel Are Time-Barred.
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).
2255(f) says that someone who wants to file a §2255
motion has to do so within a one-year ...