United States District Court, W.D. Michigan, Southern Division
J. QUIST UNITED STATES DISTRICT JUDGE
matter comes before the Court on Movant's motion to
vacate, set aside or correct sentence under the
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2255. (ECF No. 1.) On
January 31, 2017, the United States Court of Appeals for the
Sixth Circuit granted Movant's motion for authorization
to proceed with a second or successive § 2255 motion, in
light of Welch v. United States, 136 S.Ct. 1257,
1268 (2016). (ECF No. 7.) For the reasons that follow,
Movant's § 2255 motion is denied.
February 8, 2005, a grand jury returned an indictment for
conspiracy to distribute cocaine, in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(B)(iii); and
distribution of cocaine within 1000 feet of a school, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),
and 860(a). (United States v. Willis, No.
1:05-CR-18, ECF No. 25.) A superseding indictment added a
felon-in-possession charge, in violation of 18 U.S.C.
§§ 922(g)(1), 921(a), and 924(e). (Id. at
ECF No. 148.) The Government dismissed the conspiracy charge
by motion. (Id. at ECF Nos. 156, 159.) Movant went
to trial, and a jury found him guilty on all three remaining
charges. (Id. at ECF No. 176.) The Court sentenced
Movant to 224 months in prison followed by six years of
supervised release. (Id. at ECF No. 180.) Movant
appealed, and the Sixth Circuit denied his appeal. Then,
Movant filed a petition for a rehearing en banc. On August 2,
2007, the Sixth Circuit denied this petition. United
States v. Willis, 232 F. App'x 527 (6th Cir. 2007).
Movant filed a § 2255 petition on November 23, 2009
(Willis v. United States, No. 1:09-cv-1068, ECF No.
1), which the Court denied as time-barred (id. at
ECF Nos. 9, 10, 11). On December 6, 2012, Movant sought leave
to file a second or successive petition, which the Sixth
Circuit denied. (ECF No. 10). On July 20, 2015, Movant filed
the instant § 2255 motion (ECF No. 1), and the Sixth
Circuit has authorized this Court to hear the successive
§ 2255 motion (ECF No. 7).
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such a sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion
“‘a petitioner must demonstrate the existence of
an error of constitutional magnitude which had a substantial
and injurious effect or influence on the guilty plea or the
jury's verdict.'” Humphress v. United
States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
errors are generally outside the scope of § 2255 relief.
United States v. Cofield, 233 F.3d 405, 407 (6th
Cir. 2000). A petitioner can prevail on a § 2255 motion
alleging non-constitutional error only by establishing a
“fundamental defect which inherently results in a
complete miscarriage of justice, or, an error so egregious
that it amounts to a violation of due process.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (quoting United States v. Ferguson, 918 F.2d
627, 630 (6th Cir. 1990) (internal quotations omitted)).
general rule, claims not raised on direct appeal are
procedurally defaulted and may not be raised on collateral
review unless the petitioner shows either (1)
“cause” and “actual prejudice” or (2)
“actual innocence.” Massaro v. United
States, 538 U.S. 500, 504 (2003); Bousley v. United
States, 523 U.S. 614, 621-22 (1998); United States
v. Frady, 456 U.S. 152, 167-68 (1982).
the Sixth Circuit authorized Movant's successive
petition, this Court must make its own determination as to
whether Movant has satisfied AEDPA's gate-keeping
requirements. “AEDPA requires a district court to
dismiss a claim in a second or successive application unless
. . . the applicant ‘shows' that the ‘claim
relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.'”
Tyler v. Cain, 533 U.S. 656, 660-61 (quoting 28
U.S.C. § 2244(b)(2)(A)) (emphasis in original); see
also Goldblum v. Klein, 510 F.3d 204, 219-20 (3d Cir.
2007) (“Congress did not intend that the court of
appeals' preliminary authorization determine how a
district court conduct its subsequent analysis.”). This
requirement is different from the one that applicants must
satisfy in order to receive permission from the court of
appeals to file a second or successive petition. Id.
at 661 n.3. The court of appeals may authorize a successive
filing if the applicant makes a prima facie showing
that he satisfies the statutory standard. Id. To
survive dismissal in district court, however, the applicant
must actually show that the claim satisfies the
standard. Id. (emphasis added).
relies upon Johnson v. United States, 135 S.Ct. 2551
(2015), to argue that this Court improperly sentenced him
under the residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). The ACCA
provides for a mandatory minimum sentence of 15 years for a
defendant who violates 18 U.S.C. § 922(g) and has three
prior convictions for a “violent felony” or a
“serious drug offense.” Id. The ACCA has
defined violent felony as:
[A]ny crime punishable by imprisonment for a term exceeding
one year . . . that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential ...