United States District Court, E.D. Wisconsin
DESHAUN D. PATRICK, Petitioner,
UNITED STATES OF AMERICA, Respondent.
STADTMUELLER, U.S. DISTRICT JUDGE.
August 14, 2015, Petitioner Deshaun D. Patrick
(“Patrick”) filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. (Docket #1). Patrick's
sentence was increased because he was deemed a career
offender under the U.S. Sentencing Guidelines (the
“Guidelines”). United States v. Deshaun D.
Patrick, 14-CR-26-RTR (E.D. Wis.) (Docket #33 at 2-4). 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 Patrick's case was imposed
by the definition of a “crime of violence” found
in Section 4B1.2(a) of the Guidelines. (Docket #1 at 4).
“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).
Patrick's prior convictions underlying his career
offender designation was for fleeing a police officer, which
is only considered a “crime of violence” by way
of the residual clause. United States v. Dismuke,
593 F.3d 582, 596 (7th Cir. 2010). In Johnson, the
Supreme Court found that the ACCA's residual clause was
unconstitutionally vague. Johnson, 135 S.Ct. at
2557. Patrick contends that the residual clause of the
Guidelines must be similarly invalidated. (Docket #1 at 3-5).
argument 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 Patrick's position
and found the Guidelines' 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
Patrick's motion, asking that it be dismissed in light of
Beckles. (Docket #15). Patrick offered no reply;
instead, on March 16, 2017, he filed a motion to dismiss this
matter without prejudice pursuant to Federal Rule of Civil
Procedure (“FRCP”) 41(a)(2). (Docket
#16). The next day, Respondent filed a letter
asking that the Court ignore Patrick's request for
dismissal and decide this case on its merits. (Docket #17).
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). Patrick's request for dismissal without
prejudice is improper. His sole avenue for relief was the
alleged vagueness of the Guidelines' residual clause, and
Beckles precludes any vagueness challenges to the
Guidelines. His motion will, therefore, 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), Patrick 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 Patrick'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
Patrick 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 (Docket #1) be and the same is hereby
IS FURTHER ORDERED that this action be and same is
hereby DISMISSED with prejudice; and
IS FURTHER ORDERED that a certificate of
appealability be and the same is hereby
Clerk of the Court is directed to ...