United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
28 U.S.C. § 2255, plaintiff Raequon Allen moves to
vacate a sentence imposed by this court on November 28, 2018.
In particular, following remand, the court re-sentenced him
to 108 months of imprisonment for committing a Hobbs Act
robbery, 18 U.S.C. § 1951(a), and for brandishing a
firearm during that crime, 18 U.S.C. § 924(c)(1)(A)(ii).
matter is currently before the court for preliminary review
under Rule 4 of the Rules Governing Section 2254 Cases, which
also applies to § 2255. Specifically, Rule 4 requires
this court to evaluate whether the lawsuit crosses
“some threshold of plausibility” before the
government will be required to answer. Harris v.
McAdory, 334 F.3d 665, 669 (7th Cir. 2003);
Dellenbach v. Hanks, 76 F.3d 820, 822 (7th Cir.
1996). In conducting this review, the court has considered
the substance of Allen's § 2255 petition and the
materials from his underlying criminal conviction and
re-sentencing in this court, as well as before the Court of
Appeals for the Seventh Circuit. Since these materials do not
suggest that he has a plausible claim for relief, it will be
Allen originally pleaded guilty to robbery in violation of
the Hobbs Act, 18 U.S.C. § 1951(a), and to brandishing a
gun during that crime in violation of 18 U.S.C. §
924(c)(1)(A)(ii) on April 21, 2016. This court then sentenced
him to a term of 36 months in prison for the Hobbs Act
violation and to a consecutive, mandatory term of 84 months
for the firearm offense. In landing on that sentence, the
court noted that its sentence was constrained by the Seventh
Circuit's decision in United States v. Roberson,
474 F.3d 432 (7th Cir. 2007), which had held that sentencing
judges may not reduce the sentence for a predicate crime in
consideration of the mandatory sentence for the § 924(c)
offense. Id. at 436-37. On appeal, Allen challenged
his firearm conviction, term of imprisonment, and various
conditions of his supervised release. See United States
v. Allen, No. 16-2950, slip op. at 1 (7th Cir. Aug. 21,
2017). On August 21, 2017, the Court of Appeals for the
Seventh Circuit affirmed his firearm conviction, but vacated
his sentence and remanded it back to this court for
resentencing in light of the United States Supreme
Court's decision in Dean v. United States, 137
S.Ct. 1170 (2017), which clarified that the court
may consider the impact of the consecutive mandatory
minimum sentence under § 924(c) when arriving at the
overall sentence, effectively abrogating Roberson.
remand, this court reduced the robbery sentence under the
Hobbs Act by one year, for a total prison term of 108 months.
Allen then appealed again, this time arguing that the same
judge should not have conducted his resentencing hearing, and
that this court should not have denied his motion for a
second resentencing. Allen's appointed appellate attorney
claimed that his appeals were frivolous and sought to
withdraw under Anders v. California, 386 U.S. 738
(1967). On February 6, 2019, the Seventh Circuit granted that
motion, dismissing the appeal because: (1) the Seventh
Circuit had expressly remanded Allen's case back to this
court for resentencing in light of Dean, and the
court properly exercised its discretion at resentencing; (2)
Allen's 108-month sentence was within the calculated
guidelines range and, thus, presumed reasonable; (3) Allen
waived any challenge to the conditions of his supervised
release; and (4) Allen's late-raised argument that his
firearm conviction could not count as a crime of violence in
light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018),
failed because it is well-settled that his Hobbs Act robbery
is a crime of violence under the elements clause of
§ 924(c)(3)(A). Id. at 2-3.
motion, Allen seeks relief on four grounds: (1) his
indictment and plea agreement did not set out all of the
essential elements of the crimes, and thus were defective;
(2) this court should not have resentenced him on November
28, 2017; (3) the Seventh Circuit's opinion misstated the
charges to which he pleaded; and (4) his plea agreement did
not waive his right to challenge constitutional violations.
Additionally, Allen has recently filed a letter in which he
seeks relief under the United States Supreme Court's
recent decision in United States v. Davis, __ U.S.
__, 139 S.Ct. 2319, 2019 WL 2570623 (June 24, 2019).
under § 2255 “is reserved for extraordinary
situations, ” Prewitt v. United States, 83
F.3d 812, 816 (7th Cir. 1996), involving “errors of
constitutional or jurisdictional magnitude, or where the
error represents a fundamental defect which inherently
results in a complete miscarriage of justice.”
Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir.
1994) (quotations omitted). Moreover, section 2255 petitions
are “neither a recapitulation of nor a substitute for a
direct appeal.” McCleese v. United States, 75
F.3d 1174, 1177 (7th Cir. 1996) (citations omitted).
Accordingly, a § 2255 motion cannot raise: (1) issues
that were raised and decided on direct appeal, unless there
is a showing of changed circumstances; (2) non-constitutional
issues that could have been raised on direct appeal, but were
not; and (3) constitutional issues that were not raised on
direct appeal. See Belford v. United States, 975
F.2d 310, 313 (7th Cir. 1992) (overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir.
1994)). There are two exceptions regarding constitutional
issues: (1) if the movant demonstrates cause for failing to
raise the issue and actual prejudice resulting therefrom; or
(2) if the court's refusal to consider the constitutional
issue would result in a fundamental miscarriage of justice,
which requires a showing of actual innocence. See
Belford, 975 F.2d at 313 (collecting authority); see
also McCleese, 75 F.3d at 1177-78 (discussing
fundamental miscarriage of justice).
the possible exception of relief under Davis¸
all of the grounds for relief set forth in Allen's §
2255 motion appear subject to immediate dismissal under these
principles. For example, the Seventh Circuit already
considered and rejected his second ground for relief
challenging the fact that the same judge re-sentenced him.
See Allen, No. 17-3525, slip op. at 3 (“It is
standard practice for the sentencing judge to conduct any
resentencing hearing also, except in certain circumstances
not applicable here.”). Additionally, Allen's
challenges to the validity of his indictment and plea were
not raised on direct appeal. Thus, those claims will be
dismissed as procedurally defaulted unless Allen can show
cause and prejudice or that a fundamental miscarriage of
justice would result if the court declined to hear them.
Given that Allen's only excuse for not raising these
issues previously is that he was unaware of these arguments,
it is equally apparent that he has defaulted on these claims.
More importantly, Allen has not articulated how the
phrasing of the indictment and plea agreement actually
amounted to a constitutional violation or miscarriage of
while Allen asserts that the Seventh Circuit's opinion
cited to the wrong statutory provisions under which he was
indicted and pleaded guilty, Allen does not explain how that
recitation of the procedural history of his criminal charges
and plea makes any material difference to the court's
ruling, much less amounts to a constitutional violation. In
sum, Allen has not identified any basis upon which his
November 28, 2017, resentencing amounted to a constitutional
violation, so the court his request for relief under §
construing Allen's letters referencing the Supreme
Court's Davis decision, as a request to amend
his petition, that case offers him no relief. In
Davis, the Supreme Court invalidated 18 U.S.C.
§ 924(c)(3)(B) as unconstitutionally vague. 134 S.Ct. at
2336. Section 924(c) provides that “any person who,
during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm” is
subject to a five-year statutory minimum consecutive
sentence. 18 U.S.C. §§ 924(c)(1)(A)(ii) &
(D)(ii). A “crime of violence” is defined as
“an offense that is a felony and -- (A) has an element
the use, attempted use, or threatened use of physical force
against the person or property of another, or (B) that by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.” § 924(c)(3)(A)
& (B). In Davis, the Court invalidated §
924(c)(3)(B), but left § 924(c)(3)(B) in-tact. Since
Allen's Hobbs Act conviction involved the use, attempted
use or threatened use of force, it falls under 924(c)(3)(A).
As such, the Davis decision offers Allen no relief.
Rule 11 of the Rules Governing Section 2255 Cases, the court
must issue or deny a certificate of appealability when
entering a final order adverse to petitioner. A certificate
of appealability may issue only if the petitioner “has
made a substantial showing of the denial of a constitutional
right, ” 28 U.S.C. § 2253(c)(2), meaning that
“reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. ...