United States District Court, C.D. Illinois
MICHAEL L. HUGHES, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 08-20027
ORDER AND OPINION
E. Shadid, Chief United States District Judge
matter is now before the Court on Petitioner Hughes'
§ 2255 Motion to Vacate, Set Aside, or Correct Sentence.
For the reasons set forth below, Petitioner's Motion 
Hughes filed this § 2255 action seeking to vacate, set
aside, or correct his sentence pursuant to Johnson v.
United States, 135 S.Ct. 2251 (2015), arguing that he
should not have been sentenced as a career offender under the
U.S. Sentencing Guidelines because his conviction for
aggravated battery no longer qualifies as a crime of
violence. Hughes pled guilty to knowingly possessing cocaine
base (crack) with the intent to deliver and received an
enhanced sentence of 180 months' imprisonment on April
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 C i r. 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 based on an aggravated battery
conviction that no longer qualifies as a crime of violence
under residual clause of the career offender guideline,
U.S.S.G. 4B1.2(a)(2). On June 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). In P r i c e 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 cases on collateral
Motion seeks to invoke Johnson and the subsequent
Seventh Circuit decision in United States v.
Hurlburt, __ F.3d __, 2016 WL 4506717 (7th
Cir. Aug. 29, 2016), claiming that his prior conviction for
aggravated battery fell within the residual clause of the
definition of “crime of violence” under the
career offender guideline. While Johnson only
invalidated the residual clause of the ACCA, this holding was
extended to the substantively similar language of the career
offender guideline in Hurlburt, where the Seventh
Circuit held that the residual clause in 4B1.2(a)(2) is
unconstitutionally vague. 2016 WL 4506717, at *7. However,
the Seventh Circuit stopped short of finding that this
holding can be extended to cases challenging career offender
status on collateral review. This issue is pending before the
Supreme Court in Beckles v. United States, 616
Fed.Appx. 415 (11th Cir. 2015), cert.
granted, 136 S.Ct. 2510 (2016). Unless and until the
Supreme Court extends the finding that the residual clause of
§ 4B1.2 is retroactive to cases on collateral review,
Hughes' challenge is premature.
Hughes is not entitled to relief at this time. The case is
dismissed without prejudice to refiling if and when relief is
made retroactive on collateral review to afford
Johnson-like relief to defendants sentenced as
reasons stated above, Petitioner Hughes' Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 USC
§ 2255  is DISMISSED without ...