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Willis v. United States

United States District Court, W.D. Michigan, Southern Division

March 9, 2017

ROBERT WILLIS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         This 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.

         I.

         On 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).

         II.

         A 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 Cir. 2003)).

         Non-constitutional 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)).

         As a 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).

         III.

         Although 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).

         Movant 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 ...

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