United States v. Stork

• Decision Date: 04 December 2015
• Docket Number: Case No. 3:10-CR-132,Case No. 3:15-CV-435,Case No. 3:15-CV-389
• Parties: UNITED STATES OF AMERICA v. FRANK E. STORK
• Court: U.S. District Court — Northern District of Indiana

UNITED STATES OF AMERICA
v.
FRANK E. STORK

Case No. 3:10-CR-132
Case No. 3:15-CV-389
Case No. 3:15-CV-435

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

December 4, 2015

OPINION AND ORDER

Now before the Court is a motion by the defendant, Frank E. Stork, to vacate his sentence pursuant to 28 U.S.C. § 2255. Mr. Stork was convicted of possessing a firearm and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, Mr. Stork received an increased base offense level under the Guidelines because he had two prior convictions for crimes of violence. One of those two prior convictions was for resisting law enforcement in a vehicle, which, consistent with the Supreme Court's holding in Sykes, involves conduct that presents a serious potential risk of physical injury to another, and thus satisfies the Guidelines' residual clause of the definition of crime of violence. Subsequently, in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that the same residual clause in the Armed Career Criminal Act's definition of "violent felony" was void for vagueness. Now, in his second motion under § 2255, Mr. Stork claims that Johnson applies equally to the Guidelines and that, because his advisory Guidelines range was increased based on a provision that is void for vagueness, he was sentenced in violation of the Constitution and is entitled to collateral relief. For the following reasons, the Court finds that Mr. Stork does not meet the statutory requirements for filing a second or successive motion under § 2255, and thus dismisses his motion.

I. FACTUAL BACKGROUND

Mr. Stork was indicted by a federal grand jury on October 14, 2010. The indictment charged Mr. Stork with knowingly possessing a firearm and ammunition, having previously been

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convicted of a felony. [DE 1]. The charges arose out of a traffic stop of a car in which Mr. Stork was a passenger. As an officer was standing by the driver's side window, Mr. Stork reached outside his own window and dropped a firearm magazine. Officers then removed Mr. Stork from the vehicle, at which time two rounds of ammunition fell off of Mr. Stork's lap. It was also apparent that Mr. Stork had hastily tried to hide something in the center console as the officer was approaching the car, and upon a search of the car, officers found a firearm hidden in that area that matched the magazine and ammunition. Because Mr. Stork had multiple prior felony convictions, he was arrested and charged with possessing a firearm and ammunition as a felon. The case proceeded to a jury trial, at which Mr. Stork was convicted.

At sentencing, Mr. Stork received a base offense level of 24 under the Sentencing Guidelines, pursuant to U.S.S.G. § 2K2.1(a)(2), which applies where "the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." Mr. Stork had prior federal convictions from 1998 for committing a violent crime in aid of racketeering activity and for using or carrying a firearm during and in relation to a crime of violence. Those convictions constituted one crime of violence for purposes of § 2K2.1(a)(2). Mr. Stork also had a conviction from 2007 for resisting law enforcement in a vehicle, which is a felony under Indiana law. In Sykes v. United States, 131 S. Ct. 2267, 2277 (2011), the Supreme Court held that that precise offense constituted a violent felony under the residual clause of the Armed Career Criminal Act, which defines violent felony, in part, as an offense that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Because the Guidelines contain an identical residual clause in its definition of crime of violence, U.S.S.G. § 4B1.2(a)(2), the Court overruled an objection by Mr. Stork and found that his 2007 conviction constituted a second

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prior conviction for a crime of violence, so his base offense level became 24. Mr. Stork received no other adjustments to his offense level, so his total offense level was 24. With his criminal history score of 9, Mr. Stork fell in criminal history category IV, producing an advisory sentencing range of 77 to 96 months of imprisonment. If Mr. Stork only had one prior conviction for a crime of violence, his base offense level would have been 20, U.S.S.G. § 2K2.1(a)(4)(A), which would have produced an advisory sentencing range of 51 to 63 months of imprisonment.

After considering the factors under 18 U.S.C. § 3553(a), the Court sentenced Mr. Stork to 82 months of imprisonment. Mr. Stork appealed, but the Seventh Circuit affirmed. United States v. Stork, 487 F. App'x 295 (7th Cir. 2012). Mr. Stork filed a petition for a writ of certiorari, but the Supreme Court dismissed that petition at Mr. Stork's request on January 2, 2013, Stork v. United States, 133 S. Ct. 831 (2013), at which point the judgment became final. In the meantime, Mr. Stork had also filed a motion under 28 U.S.C. § 2255 to vacate his conviction, which this Court stayed pending conclusion of Mr. Stork's direct appeal. Once Mr. Stork's conviction became final, the Court addressed Mr. Stork's motion under § 2255 on its merits, and denied the motion. [DE 137]. Mr. Stork appealed from that judgment and sought a certificate of appealability from the Seventh Circuit, but the Seventh Circuit denied that request. Stork v. United States, No. 14-2530, doc. 9 (7th Cir. Nov. 18, 2014). Mr. Stork then sought permission from the Seventh Circuit to file a second or successive motion under § 2255 to raise one of the same issues raised in his first motion, and the Seventh Circuit denied that request, too. Stork v. United States, No. 14-3648, doc. 4 (7th Cir. Dec. 11, 2014).

On June 26, 2015, the Supreme Court issued its decision in Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the Supreme Court overruled its prior decision in Sykes, and held that the residual clause of the definition of violent felony in the Armed Career Criminal Act was

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unconstitutionally vague. Johnson, 135 S. Ct. at 2563. Mr. Stork thereafter filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization from the Seventh Circuit to file a second or successive motion to vacate his sentence under § 2255, contending that the increase in his base offense level under the Guidelines based on language that Johnson held was void for vagueness meant that his sentence was imposed in violation of the Constitution. Citing its decision in Price v. United States, 795 F.3d 731 (7th Cir. 2015), in which it held that Johnson applies retroactively to cases on collateral review, the Seventh Circuit granted Mr. Stork's application and authorized this Court to consider Mr. Stork's claim. The Seventh Circuit concluded its order as follows: "We caution the district court that our review is necessarily preliminary and limited to the conclusion that Stork has made a prima facie showing of a tenable claim under Johnson. The district court must decide first whether Johnson applies to U.S.S.G. § 4B1.2(a)(2) (the residual clause of the career-offender guideline) and, if so, whether Stork is subject to the adjustment under the new rule." [DE 157]; Stork v. United States, No. 15-2687, 2015 WL 5915990, at *1 (7th Cir. Aug. 13, 2015). Mr. Stork accordingly filed his second motion under § 2255 before this Court, and also sought release pending resolution of his motion. [DE 159]. Those requests have been fully briefed, and are ripe for ruling.

II. PRELIMINARY MATTERS

Before turning to the merits of Mr. Stork's petition, there are several preliminary matters to address relative to Mr. Stork's representation. Mr. Stork filed his § 2255 motion on August 24, 2015 on his own behalf. [DE 159]. Two days later, Matthew Soliday of the Federal Community Defenders entered an appearance on behalf of Mr. Stork pursuant to General Order 2015-15, which appointed the Federal Community Defender's Office to represent any indigent defendant in this district to determine whether that defendant may qualify for habeas relief in light of Johnson. The Court therefore ordered Mr. Stork to state whether he wished to proceed pro se or

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to be represented by Mr. Soliday in this matter. [DE 160]. Mr. Stork responded by requesting to proceed pro se, so the Court granted Mr. Soliday's motion to withdraw. [161, 163]. Shortly thereafter, however, Jennifer Soble, also from the Federal Community Defender's Office, entered an appearance on Mr. Stork's behalf, stating that she spoke to Mr. Stork and that he asked her to represent him. Ms. Soble also filed what she titled as an amended petition, though that filing states that it does not raise any new claims not presented in Mr. Stork's initial petition. Based on that filing, the clerk's office opened a new civil case number for the amended petition, case number 3:15-cv-435.

Given Mr. Stork's conflicting requests, the Court again ordered Mr. Stork to confirm whether he wished to proceed pro se or to be represented in this matter. In response, Mr. Stork filed a Motion for Clarification [DE 173], in which he stated that he wished to proceed pro se, but that he would like Ms. Soble to present her filings as supplemental briefs in support of his petition. He also filed his own reply brief in support of his petition. Ms. Soble then filed a motion for leave to file a brief in support of Mr. Stork's petition as amicus curiae [DE 175], along with a motion for leave to file that brief after the deadline previously set for her reply brief [DE 174]. In the interests of justice and in order to allow the issues raised in Mr. Stork's petition to be fully presented and argued, the Court grants those motions, and has considered both Mr. Stork's and Ms. Soble's filings. In addition, consistent with Mr. Stork's request, the Court will construe Ms. Soble's amended petition [DE...