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D'Antoni v. United States

United States District Court, W.D. Wisconsin

January 17, 2018

TODD A. D'ANTONI, Plaintiff,
v.
UNITED STATES OF AMERICA

          OPINION AND ORDER

          WILLIAM M. CONLEY, District Judge

         In 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.

         The 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.

         RELEVANT BACKGROUND

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 government witness.
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 2013.
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) (en banc).
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.

         OPINION

         The court first will resolve the government's three procedural arguments and then will turn to its merits-based arguments.

         I. Procedural Issues

         A. Successive Petition Under 28 U.S.C. § 2244(b)(1)

         First 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 ...


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