United States District Court, W.D. Wisconsin
TODD A. D'ANTONI, Plaintiff,
UNITED STATES OF AMERICA
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge
1991, Todd D'Antoni was sentenced under the mandatory
sentencing Guidelines as a career offender. Now before the
court is his second petition under 28 U.S.C. § 2255,
which the Seventh Circuit authorized based on the United
States Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). (See dkt. #2.)
This matter was stayed pending the Supreme Court's
decision in Beckles v. United States, 137 S.Ct. 886
(2017). After the Beckles decision was issued in
March of 2017, the parties completed their briefing and the
court held an oral argument on May 11, 2017.
government opposes D'Antoni's petition on four
grounds, the first three of which are procedural. First, the
government asserts the petition is an inappropriate
successive petition under 28 U.S.C. § 2244(b)(1).
Second, it claims that D'Antoni procedurally defaulted
his claim. Third, it argues that Johnson is not to
be applied retroactively to mandatory or advisory Guidelines
cases, making D'Antoni's claim untimely. Finally and
fourth, the government maintains that D'Antoni's
claim fails on the merits because: (a) Beckles and
Seventh Circuit precedent bar relief; and (b) his conviction
for conspiring to kill a government witness qualifies as a
predicate offense under the Guideline application notes.
After considering the parties' briefing, letters and
arguments, the court will deny D'Antoni's petition on
the merits and grant him a certificate of appealability.
• February 1991: A jury convicted
D'Antoni of conspiracy to distribute LSD at the Oxford
Correctional Institution while he was serving a 40-year
federal sentence for cocaine-dealing and conspiring to kill a
• April 1991: District Court Judge John
C. Shabaz sentenced D'Antoni as a career offender to 22
years (264 months) in prison, to be served consecutive to his
preexisting federal sentences. The statutory maximum was 30
years, and the applicable mandatory guideline range was 262
to 327 months. D'Antoni was sentenced prior to the
Supreme Court's decision in United States v.
Booker, 543 U.S. 220 (2005). As such, his sentence was
the product of the mandatory Guidelines.
D'Antoni's career offender status was based on two
1987 federal felony convictions: (1) a conviction for
delivering cocaine to a person under the age of 21, which
qualified as a controlled-substance conviction under USSG
§ 4B1.2(b); and (2) a conviction for conspiring to kill
a government witness, which in 1991, was a listed offense in
Application Note 1 to USSG § 4B1.2(a)(2).
• October 2010: D'Antoni filed a
pro se motion under § 2255, arguing that his
career-offender sentence was unlawful because it did not
include advance notice of the underlying prior convictions.
This court denied that motion as untimely in 2012, and the
Seventh Circuit denied D'Antoni's requests for a
certificate of appealability and petition for rehearing in
• June 26, 2015: The Supreme Court
issued Johnson v. United States, 135 S.Ct. 2251
(2015), concluding that the residual clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague.
• April 18, 2016: The Supreme Court
held that “Johnson announced a substantive
rule that has retroactive effect in cases on collateral
review.” Welch v. United States, 136 S.Ct.
1257, 1264-68 (2016).
• June 10, 2016: D'Antoni received
permission from the Seventh Circuit to proceed on a
successive § 2255 petition, in which he argues that: (1)
the residual clause of U.S.S.G. § 4B1.2, which includes
identical language to the residual clause of the ACCA, is
unconstitutional; and (2) his conviction for conspiracy to
kill a government witness no longer qualifies as a predicate
offense because it falls under the residual clause and the
application note is invalid. The court stayed this matter on
June 30, 2016.
• August 29, 2016: The government
conceded and the Seventh Circuit agreed that Johnson
applies to the advisory Guidelines, and the court held that
the residual clause was unconstitutionally vague. United
States v. Hurlburt, 835 F.3d 715, 719-25 (7th Cir. 2016)
• March 6, 2017: The Supreme Court
issued Beckles v. United States, 137 S.Ct. 886, 888,
892 (2017), holding that the advisory Guidelines'
residual clause remains valid after Johnson because
the advisory Guidelines, unlike the ACCA, “do not fix
the permissible range of sentences, ” so the advisory
Guidelines sentences “are not subject to a vagueness
challenge under the Due Process Clause.” The impact of
Johnson on defendants sentenced before
Booker was not before the Supreme Court.
• March 14, 2017: The parties moved to
reopen this matter.
court first will resolve the government's three
procedural arguments and then will turn to its merits-based
Successive Petition Under 28 U.S.C. §
the government argues that D'Antoni's petition is
barred by 28 U.S.C. § 2244(b)(1), which requires
dismissal of a “claim presented in a second or
successive habeas corpus application . . . that was presented
in a prior application.” While the government points to
the Seventh Circuit's reasoning that “new legal
arguments about the same events do not amount to a new claim,
” Brannigan v. United States, 249 F.3d 584,
587 (7th Cir. 2001), it concedes that the Seventh Circuit has
since permitted successive § 2255 petitions, like
D'Antoni's, to proceed on a Johnson-type
claim despite having presented an earlier petition that
challenged his career offender status. In Price v. United
States, 795 F.3d 731, 733 (7th Cir. 2015), the Seventh
Circuit construed a “claim” for purposes of
§ 2244(b)(1) to be a specific legal argument,
commenting that even though the petitioner raised a
“related” argument, he ...