United States District Court, D. Connecticut
RULING RE: PETITION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE (DOC. NO. 1) AND
MOTION TO APPOINT COUNSEL (DOC. NO. 2)
C. Hall United States District Judge.
Marcus Dwyer (“Dwyer”), pro se, moves to
vacate, set aside, or correct his sentence pursuant to
section 2255 of title 28 of the United States Code.
See Petition Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Doc. No. 1). Dwyer also seeks
counsel to be appointed so that he might pursue resentencing
under Johnson v. United States, 135 S.Ct. 2551
(2015) and Welch v. United States, 136 S.Ct. 1257
(2016). See Motion to Appoint Counsel
(Doc. No. 2).
13, 2013, Dwyer pled guilty to a one-count Indictment
charging him with bank robbery in violation of section
2113(a) of title 18 of the United States Code. See
Plea Agreement (Case No. 12-cr-195, Doc. No. 110-3) at 1. The
Presentence Report found, inter alia, that
Dwyer's offense level should be increased four levels for
the purposes of the United States Sentencing Guidelines
calculation, because a dangerous weapon was used.
See Presentence Report (Case No. 12-cr-195, Doc. No.
110) ¶ 33. The court adopted the findings in the
Presentence Report. On September 4, 2013, the court sentenced
Dwyer to 188 months in prison for bank robbery in violation
of section 2113(a) of title 18 of the United States Code.
See Judgment (Doc. No. 1-1). This 188-month sentence
was at the bottom of the applicable sentencing guidelines
range. See Presentence Report ¶ 93.
claims that his sentence should be corrected under
Johnson because bank robbery is not categorically a
crime of violence. See Petition at 4. Specifically,
Dwyer argues that his offense level increase for use of a
firearm should be vacated. See Id. at 4. The
Government argues that Dwyer's Petition should be denied
because (1) Dwyer was not sentenced under the Armed Career
Criminal Act, the only statute to which Johnson
applies, and (2) Dwyer waived his right to collateral attack
of his sentence. See Response (Doc. No. 6) at 1-2.
reasons set forth below, Dwyer's Motion to Appoint
Counsel (Doc. No. 2) is DENIED and his
Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (Doc. No. 1) is also
collateral challenges are in tension with society's
strong interest in the finality of criminal convictions, the
courts have established rules that make it more difficult for
a defendant to upset a conviction by collateral, as opposed
to direct, attack.” Yick Man Mui v. United
States, 614 F.3d 50, 53 (2d Cir. 2010) (internal
quotation marks omitted). Relief under section 2255 of title
28 of the United States Code is available “only for a
constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes
a fundamental defect which inherently results in a complete
miscarriage of justice.” Cuoco v. United
States, 208 F.3d 27, 30 (2d Cir. 2000) (internal
quotation marks omitted). Further, in a section 2255 motion,
the petitioner bears the burden of proving he is entitled to
relief by a preponderance of the evidence. See Skaftouros
v. United States, 667 F.3d 144, 158 (2d Cir. 2011).
Johnson Supreme Court decision applies to
incarcerated people who had their sentences increased under
the residual clause of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e). See 135 S.Ct. 2551, 2563
(2015). Dwyer does not allege that he was sentenced under
ACCA, nor as a career offender. See Petition at 4.
Furthermore, there is nothing on the record in this case or
in Dwyer's criminal case to suggest that Dwyer was
sentenced under ACCA, or under any provision of the United
States Sentencing Guidelines that might have been affected by
Johnson, such as the Career Offender provision,
U.S.S.G. § 4B1.1-4B1.2(a)(2). See,
e.g., Presentence Report at 3-20; Plea Agreement at
1-4. Because he was not sentenced under ACCA, nor any
Guidelines provision that might have been affected by
Johnson, Dwyer is not eligible for habeas relief
under Johnson. The court thus need not consider
whether Dwyer also waived his right to collateral attack of
is no constitutional right to counsel in a non-capital habeas
proceeding. See United States v. Yousef, 395 F.3d
76, 77 (2d Cir. 2005). However, the court has the power to
appoint representation in a 2255 case whenever “the
court determines that the interests of justice so
require.” 18 U.S.C. § 3006A(a)(2). To determine
whether the interests of justice require the appointment of
counsel, the court considers, inter alia, the
petitioner's likelihood of success on the merits.
See, e.g., Petrie v. United
States, No. 5:11-CR-271 (NAM), 2015 WL 12696069, at *9
(N.D.N.Y. June 29, 2015); United States v.
Brown, 2014 WL 3738062, at *6 (D.Conn. July 30, 2014).
Here, where Dwyer's Petition is plainly without merit,
the court declines to appoint counsel.
reasons set forth above, the court DENIES
Dwyer's Motion to Appoint Counsel (Doc. No. 2) and
DENIES Dwyer's Petition Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence (Doc.
No. 1). Because Dwyer has not made a “substantial
showing” of denial of a constitutional right, a
certificate of appealability will not issue. 28 U.S.C. §
2253(c)(2). The Clerk is hereby directed to close this case.