United States District Court, C.D. Illinois
TONY L. BROCK, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 13-20058
ORDER AND OPINION
E. Shadid Chief United States District Judge.
matter is now before the Court on Petitioner Brock's
§ 2255 Motion to Vacate, Set Aside, or Correct Sentence
and Motion for Leave to File an Amended Motion. For the
reasons set forth below, Petitioner's Motion  is
DISMISSED, and his Motion for Leave to File an Amended Motion
 is DENIED AS MOOT.
Brock 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 discharge of a firearm no longer qualifies as a
crime of violence under USSG § 4B1.1's residual
clause. Brock pled guilty to knowingly possessing heroin with
the intent to distribute and conspiracy to distribute heroin.
Although he was determined to be a career offender and faced
an enhanced sentence of 360 months to life, Judge McCuskey
imposed a sentence of 180 months' imprisonment following
the Government's §5K1.1 motion. Brock did not
appeal, and his conviction became final on August 8, 2014.
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 based on an aggravated
discharge of a firearm 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 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 cases on collateral review. Id.
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 discharge of a firearm 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, Br
o c k 's challenge is premature.
Petitioner 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
career offenders. As a result, his Motion to Amend, which
would not correct this deficiency, is denied as moot.
reasons stated above, Petitioner Brock's Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 USC
§ 2255  is DISMISSED without prejudice as premature,
and his Motion for Leave to File ...