United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge.
matter is now before the Court on Petitioner Johnson's
Amended  Motion to Vacate, Set Aside or Correct Sentence
under 28 U.S.C. § 2255. For the reasons set forth below,
Johnson's Motion  is DENIED.
Johnson was charged on May 18, 2011 by way of indictment with
one count of conspiracy to distribute and possess with intent
to distribute cocaine base, in violation of 21 U.S.C.
§§ 846 and 841(a)(1), and one count of possession
of cocaine base with intent to distribute, in violation of 21
U.S.C. § 841(a)(1). He entered an open plea of guilty to
both counts on July 1, 2011. See United States v.
Johnson, No. 11-cr-10044 (C.D. Ill. 2011). The Court
found that Johnson was a career offender under USSG §
4B1.1 based on his prior convictions for armed robbery and
aggravated fleeing or attempt to elude a peace officer.
Application of the career offender guideline resulted in an
advisory guideline range of 262-327 months' imprisonment.
The Court ultimately varied below the calculated guideline
range and sentenced Johnson to a term of 170 months'
imprisonment. Johnson filed a notice of appeal, but the
appeal was later dismissed on Johnson's own motion.
26, 2015, the Supreme Court issued a decision in Johnson
v. United States, 135 S.Ct. 2251 (2015).
Johnson held that the residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e), was
unconstitutionally vague. On January 26, 2016, Petitioner
Johnson filed the instant § 2255 motion asserting that
he no longer qualifies as a career offender in light of
Johnson because his predicate offense for aggravated
fleeing or attempt to elude a peace officer is no longer a
“crime of violence” as that term is defined under
USSG § 4B1.2.
March 15, 2016, the Court granted Johnson's request for
appointment of counsel and appointed attorney Lee Smith from
the CJA Panel to represent him. Attorney Smith filed a reply
brief on April 13, 2016, and the United States subsequently
sought to stay this action pending the Supreme Court's
resolution of Beckles v. United States, 137 S.Ct.
886 (2017). On July 25, 2016, the Court granted the stay and
directed the parties to file a status report once the Supreme
Court decided Beckles. On April 16 and 26, 2017,
respectively, the United States and Petitioner filed status
reports. Although Petitioner's status report requested
additional time to more fully respond, for the reasons set
forth below, the Court finds that no additional briefing is
necessary to resolve this case. If Petitioner disagrees with
this Order, he may file a motion under Rule 59 or 60.
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 a substitute for
a direct appeal. Doe v. United States, 51 F.3d 693,
698 (7th Cir. 1995), cert. denied, 116 S.Ct. 205
(1995); McCleese v. United States, 75 F.3d 1174,
1177 (7th Cir. 1996).
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. Accordingly, a petitioner
bringing a § 2255 motion is barred from raising: (1)
issues raised on direct appeal, absent some showing of new
evidence or changed circumstances; (2) nonconstitutional
issues that could have been but were not raised on direct
appeal; or (3) constitutional issues that were not raised on
direct appeal, absent a showing of cause for the default and
actual prejudice from the failure to appeal. 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, 710-20 (7th Cir. 1994).
filed this § 2255 motion based on the Supreme
Court's decision in Johnson. In that case the
Supreme Court held that “imposing an increased sentence
under the residual clause of the Armed Career Criminal Act
violates the Constitution's guarantee of due
process” because the clause was unconstitutionally
vague. 135 S.Ct. at 2563. The residual clause in Section
924(e) of the ACCA contains the same language as the
Guidelines' residual clause. See USSG § 4B1.2(a).
Prior to Johnson, Seventh Circuit precedent squarely
foreclosed vagueness challenges to the Sentencing Guidelines.
United States v. Tichenor, 683 F.3d 358 (7th Cir.
2012). However, after Johnson but before
Beckles, the Seventh Circuit overruled
Tichenor and, applying Johnson, held that
the residual clause in USSG § 4B1.2(a)(1) was
unconstitutionally vague. United States v. Hulburt,
835 F.3d 715, 725 (7th Cir. 2016). On March 6, 2017, the
Supreme Court decided Beckles. Abrogating the
Seventh Circuit's decision in Hulburt, the
Supreme Court held that “the advisory Sentencing
Guidelines are not subject to a vagueness challenge under the
Due Process Clause and that § 4B1.2(a)'s residual
clause is not void for vagueness.” Beckles v.
United States, 137 S.Ct. 886, 895 (2017).
light of Beckles, analysis of Petitioner
Johnson's § 2255 motion is straightforward. Johnson
challenges his designation as a career offender based on his
prior conviction for aggravated fleeing and eluding, which
qualified as a crime of violence under the Guidelines'
residual clause. In light of Beckles, the advisory
Sentencing Guidelines are not subject to vagueness challenges
under the Due Process Clause, so § 4B1.2(a)'s
residual clause is not void for vagueness. Beckles,
137 S.Ct. at 895; Cummings v. United States, No.
16-1636, 2017 WL 1086303 (7th Cir. Mar. 21, 2017).
Accordingly, Petitioner Johnson's § 2255 motion must
obtain a certificate of appealability, a petitioner must make
“a substantial showing of the denial of a
constitutional right.” 28 U.S.C § 2253(c)(2).
“Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy §
2253(c) is straightforward: The petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Here, no reasonable jurist could conclude that