United States District Court, C.D. Illinois
DAVID W. VORTIES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER AND OPINION
E. Shadid Chief United States District Judge
before the Court is Petitioner Vorties' Motion (Doc. 1)
to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.
§ 2255. For the reasons set forth below,
Petitioner's Motion (Doc. 1) is DENIED and the Court
declines to issue a Certificate of Appealability.
April 22, 2004, David Vorties was charged in the United
States District Court for the Central District of Illinois in
a three-count Indictment alleging the following offenses:
Possession of 50 or More Grams of Cocaine Base with Intent to
Distribute, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A) (Count 1); Possession of a Firearm by a Felon, in
violation of 18 U.S.C. § 922(g)(1) and 924(e)(1) (Count
2); and Carrying a Firearm in Furtherance of a Drug
Trafficking Crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i). R. 40 (Presentence Report). Vorties pleaded
guilty pursuant to a plea agreement which contained a
collateral attack waiver. R. 36. The probation officer
prepared a Presentence Report (“PSR”) listing
Vorties' prior convictions for controlled substance
offenses and crimes of violence and determined that he
qualified as a Career Offender under U.S.S.G. § 4B1.2.
Id. Based on a total offense level of 35 and and a
criminal history category of VI, Vorites' advisory
guideline sentencing range was 352 to 425 months of
imprisonment. Id. at ¶ 81. Vorties did not
object to any of the findings in the PSR. The Court sentenced
him to concurrent terms of 292 months of imprisonment on
Counts 1 and 2, plus 60 months of imprisonment on Count 3, to
be served consecutive to the terms imposed on Counts 1 and 2,
for a combined sentence of 352 months of imprisonment. R. 42.
Vorties did not appeal.
now brings this Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. Doc. 1. Therein, he
argues that his Illinois felony domestic battery conviction
is no longer a crime of violence under the advisory
guidelines following the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2251 (2015). The
United States filed a Response in opposition to Vorites'
Motion. Doc. 10. This Order follows.
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).
decisions from the Seventh Circuit, Hawkins v. United
States, 706 F.3d 820 (7th Cir. 2013) (Hawkins
I), and Hawkins v. United States, 724 F.3d 915
(7th Cir. 2013) (Hawkins II), preclude relief for
Petitioner Vorties because together they hold a petitioner
may not seek on collateral review to revisit the district
court's calculation of his advisory guidelines range. The
Court is bound by the Hawkins decisions. Given the
interest in finality of criminal proceedings, in Hawkins
I the Seventh Circuit held an erroneous interpretation
of the guidelines should not be corrigible in a
postconviction proceeding so long as the sentence actually
imposed was not greater than the statutory maximum.
Hawkins I, 706 F.3d at 823-25. It specifically
distinguished the advisory guidelines from the mandatory
system in place at the time of Narvaez v. United
States, 674 F.3d 621 (7th Cir. 2011) (holding
Narvaez's improper sentence under the mandatory
guidelines constituted a miscarriage of justice).
moved for rehearing in light of Peugh v. United
States, 133 S.Ct. 2072 (2013), in which the Supreme
Court held the Guidelines were subject to constitutional
challenges “notwithstanding the fact that sentencing
courts possess discretion to deviate from the recommended
sentencing range.” Peugh, 133 S.Ct. at 2082.
The Seventh Circuit denied rehearing because Peugh
was a constitutional case whereas Hawkins I involved
a miscalculated guidelines range, the legal standard in
Peugh was lower than for postconviction relief, and
Peugh's retroactivity was uncertain. Hawkins
II, 724 F.3d at 916-18 (“[I]t doesn't follow
that postconviction relief is proper just because the judge,
though he could lawfully have imposed the sentence that he
did impose, might have imposed a lighter sentence had he
calculated the applicable guidelines sentencing range
Vorties' Johnson-based challenge to his Career
Offender designation is foreclosed by recent Supreme Court
precedent. In Beckles v. United States, 137 S.Ct.
886 (2017), the Supreme Court held that
Johnson's reasoning invalidating the ACCA's
residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), does not
apply to the similarly-worded residual clause in the
guidelines' Career Offender provision, U.S.S.G. §
4B1.2. Because Petitioner challenges his guidelines
calculation (i.e., his Career Offender designation) on
vagueness grounds, his claim is foreclosed by both Supreme
Court and circuit precedent. Therefore, the Court denies his
obtain a Certificate of Appealability under § 2253(c),
“a habeas prisoner must make a substantial showing of
the denial of a constitutional right.” Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). This means that
the prisoner must show “that reasonable jurists could
debate whether … the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Id. at 484. Because no reasonable
jurist could find ...