United States District Court, C.D. Illinois
WILLIAM D. KING, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 07-20055
ORDER AND OPINION
E. SHADID Chief United States District Judge.
matter is now before the Court on Petitioner
King’s’s § 2255 Motion to Vacate, Set Aside,
or Correct Sentence. For the reasons set forth below,
Petitioner’s Motion  is Denied.
King filed this § 2255 action seeking to vacate, set
aside, or correct his sentence pursuant to Johnson v.
United States, 135 S.Ct. 2251 (2015). King pled guilty
to three counts of distributing heroin in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C) on June 19, 2007.
Shortly thereafter, he pled guilty to violating the terms of
his supervised release from a prior federal case. Because
King had prior convictions for a controlled substance offense
and robbery,  he qualified for the Career Offender
enhancement under U.S.S.G. § 4B1.1. On September 18,
2007, he was sentenced to three concurrent terms of 216
months’ imprisonment on the new convictions and a
consecutive term of 24 months’ imprisonment on the
supervised release revocation.
petitioner may avail himself of § 2255 relief only if he
can show that there are “flaws in the conviction or
sentence which are jurisdictional in nature, constitutional
in magnitude or result in a complete miscarriage of
justice.” Boyer v. United States, 55 F.2d 296,
298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268
(1995). Section 2255 is limited to correcting errors that
“vitiate the sentencing court’s jurisdiction or
are otherwise of constitutional magnitude.” Guinan
v. United States, 6 F.3d 468, 470 (7th Cir. 1993),
citing Scott v. United States, 997 F.2d 340 (7th
Cir. 1993). A § 2255 motion is not, however, a
substitute for a direct appeal. Doe v. United
States, 51 F.3d 693, 698 (7th Cir.), cert.
denied, 116 S.Ct. 205 (1995); McCleese v. United
States, 75 F.3d 1174, 1177 (7th Cir. 1996). Federal
prisoners may not use § 2255 as a vehicle to circumvent
decisions made by the appellate court in a direct appeal.
United States v. Frady, 456 U.S. 152, 165 (1982);
Doe, 51 F.3d at 698.
claims in his § 2255 Motion that his sentence is invalid
because the Court found that he was eligible for an enhanced
sentence as a career offender under Section 4B1.1 of the
United States Sentencing Guidelines. That Section of the
Guidelines provides that a defendant is a career offender if:
(1) the defendant was at least eighteen years old at the time
the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense. U.S.S.G. B1.1(a). Section 4B1.2(a) defines
the term “crime of violence”:
(a) The term “crime of violence” means any
offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) 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
U.S.S.G. 4B1.2 (emphasis added)
26, 2015, the Supreme Court held that the residual clause of
the Armed Career Criminal Act violates due process because
the clause is too vague to provide adequate notice.
Johnson v. United States, 135 S.Ct. 2551 (2015). The
residual clause of the ACCA struck down by the Supreme Court
is identical to the residual clause in Section 4B1.2(a) of
the Sentencing Guidelines, italicized above. In Price v.
United States, the Seventh Circuit held that
Johnson announced a new substantive rule of
constitutional law that the Supreme Court has categorically
made retroactive to final convictions. 795 F.3d 731, 732 (7th
Cir. 2015). That decision also made clear that
Johnson is retroactive not only to cases on direct
appeal, but also to case on collateral review. Id.
Motion seeks to invoke Johnson, claiming that his
prior offenses fell within the residual clause of the
guidelines. However, Johnson invalidated only the
residual clause of the Armed Career Criminal Act, while King
qualified for a sentence enhancement under the career
offender provision in the Sentencing Guidelines, not the
ACCA. In the Seventh Circuit, Johnson has not been
extended to enhancements under the sentencing guidelines,
such as the career offender provision. While the premise may
someday be extended to the substantively similar language of
the career offender provision in the guidelines, it has not
at this time. The issue is currently pending before the
Seventh Circuit in United States v. Rollins, No.
13-1731; United States v. Hurlburt, Case No.
1403611; United States v. Gillespie, Case No.
15-1686. However, the Seventh Circuit's prior decision in
United States v. Tichenor,683 F.3d 358, 364
(7th Cir. 2012), held that the guidelines are not
subject to vagueness attacks, which is precisely what an
application of Johnson under these circumstances would
entail. Moreover, even ...