UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ISAIAH FISHER, )

)

Petitioner )

)

vs. ) CAUSE NO. 3:16-CV-197 RLM 

) (Arising out of 3:15-CR-39 RLM) 

UNITED STATES OF AMERICA, )

)

Respondent )

OPINION and ORDER

Isaiah Fisher pleaded guilty to bank robbery, in violation of 18 U.S.C. §

2113(a), and was sentenced to a term of 188 months’ imprisonment. Mr. Fisher

is now before the court requesting that his sentence be vacated, set aside, or

corrected under 28 U.S.C. § 2255 [Doc. No. 46]. 

The rules governing petitions filed under 28 U.S.C. § 2255 provide that once

a motion is filed:

The motion, together with all the files, records, transcripts, and

correspondence relating to the judgment under attack, shall be

examined promptly by the judge to whom it is assigned. If it plainly

appears from the face of the motion and any annexed exhibits and

the prior proceedings in the case that the movant is not entitled to

relief in the district court, the judge shall make an order for its

summary dismissal and cause the movant to be notified.

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States

District Courts. After reviewing the record in this case, the court finds that Mr.

Fisher’s motion can be resolved without a hearing, see Bruce v. United States, 256
F.3d 592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d 290, 293 (7th Cir.

1995).

The plea agreement was signed by Mr. Fisher, his attorney David Weisman,

and Assistant United States William Grimmer and contained the following

language in paragraph 9(h):

I understand that the law gives a convicted person the right to

appeal the conviction and the sentence imposed. I also understand

that no one can predict the precise sentence that will be imposed,

and that the Court has jurisdiction and authority to impose any

sentence withing the statutory maximum set for my offense as set

forth in this plea agreement. With this understanding and in

consideration of the government’s entry into this plea agreement, I

expressly waive my right to appeal or to contest my conviction and all

components of my sentence or the manner in which my conviction or

my sentence was determined or imposed, to any Court on any ground

other than a claim of ineffective assistance of counsel, including any

appeal under Title 18, United States Code, Section 3742 or any postconviction proceeding, including but not limited to, a proceeding

under Title 28, United States Code, Section 2255....

[Doc. No. 23]. 

Mr. Fisher also acknowledged that he: (1) understood the court would

“determine all matters, whether factual or legal, relevant to the application of the

sentencing guidelines including, but not limited to, the adjusted offense

level...[and] career offender status...”; (2) believed his attorney “ha[d] done all that

anyone could do to counsel and assist [him]”; and (3) offered his plea “freely and

voluntarily and of [his] own accord”. [Doc. No. 23, ¶¶ 9(d), 11, and 12].

Mr. Fisher is now before the court seeking post-conviction relief under 28

U.S.C. § 2255. He contends that his prior convictions for burglary and robbery

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didn’t qualify as crimes of violence under Johnson v. United States, 135 S. Ct.

2551 (2015), and that his attorney provided ineffective assistance when he failed

to object to the enhancement of his sentence under the career offender guideline,

U.S.S.G. § 4B1.1. 

A plea agreement containing a waiver of the right to appeal and to file a

petition under § 2255 can be collaterally attacked in a limited number of

circumstances, including challenges based upon contractual grounds such as

mutual mistake or breach, United States v. Cook, 406 F.3d 485, 487 (7th Cir.

2005); when a defendant claims the waiver was involuntary or counsel was

ineffective in negotiating the agreement, Mason v. United States, 211 F.3d 1065,

1069 (7th Cir. 2000); or when the sentence is greater than the statutory maximum

sentence for the offense of conviction. United States v. Bownes, 405 F.3d 634, 637

(7th Cir. 2005).

Mr. Fisher doesn’t contend that his attorney was ineffective in negotiating

the plea, that he wouldn’t have pleaded guilty but for counsel’s allegedly deficient

performance, or that his guilty plea was anything other than “a voluntary and

intelligent choice among the alternate courses of actions open to him.” Berkey v.

United States, 318 F.3d 768, 773 (7th Cir. 2003) (quoting North Carolina v. Alford,

400 U.S. 25, 31 (1970)). He simply wants a lower sentence — one that isn’t

enhanced under U.S.S.G. § 4B1.1, but affords him the benefits of other provisions

in the agreement. 

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The Supreme Court held in Johnson that the residual clause of the Armed

Career Criminal Act, which defines a “crime of violence” as any offense that

“involves conduct that presents a serious potential risk of physical injury to

another”, was unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551

(2015). But Johnson was decided before Mr. Fisher entered his plea and was

sentenced, so the waiver in his plea agreement is enforceable. See Nunez v. United

States, 546 F.3d 450, 453 (7th Cir. 2008). Even if it weren’t, Mr. Fisher isn’t

entitled to the relief he seeks. 

To prevail on [an] ineffective assistance claim, [Mr. Fisher] must

demonstrate that [his] counsel’s performance fell below an objective

standard of reasonableness, and that “the [alleged] deficient

performance prejudiced the defense.”

Taylor v. Bradley, 448 F.3d 942, 948 (7th Cir. 2006) (quoting Strickland v.

Washington, 466 U.S. 668, 687-688, 694 (1984)). To show prejudice, he must

show that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. at 694; Jones v. Page, 76 F.3d at 840. “Prejudice in the

context of a guilty plea requires a showing that but for counsel’s deficient

performance, [the defendant] would not have pleaded guilty.” Galbraith v. United

States, 313 F.3d 1001, 1008 (7th Cir. 2002). Mr. Fisher hasn’t met that burden.

He hasn’t identified evidence that would have created a reasonable probability of

a different outcome, or outlined facts that could establish that the proceedings

were fundamentally unfair or the result unreliable. 

4
Mr. Fisher’s career offender enhancement wasn’t based on the residual

clause in U.S.S.G. § 4B1.2(a)(2), but on Mr. Fisher’s prior felony convictions for

burglary, IND. CODE § 35-43-2-1, and bank robbery by force or violence, 18 U.S.C.

§ 2113(a) and (d). The latter is a “crime of violence” under U.S.S.G. 4B1.2(a)(1)

because it “has as an element the use, attempted use, or threatened use of

physical force against the person of another.” The former is one of the offenses

designated as a crime of violence under U.S.S.G. 4B1.2(a)(2). For purposes of a

career offender enhancement under the Armed Career Criminal Act, 18 U.S.C. §

924(e), the Supreme Court has defined burglary to include “any crime . . . having

the basic element of unlawful or unprivileged entry into, or remaining in, a

building or structure, with intent to commit a crime.” Taylor v. United States, 495

U.S. 575, 599 (1990). Mr. Fisher’s conviction for felony burglary under IND. CODE

§ 35-43-2-1 satisfies that requirement. See Dawkins v. United States, 809 F.3d

953, 954-56 (7th Cir. 2016). 

Mr. Fisher knowingly and voluntarily waived his right to contest his

conviction and sentence and the manner in which they were determined, and, for

the reasons stated, can’t prevail on his claim that counsel provided ineffective

assistance at sentencing. Accordingly, the motion to vacate his sentence under 28

U.S.C. § 2255 [Doc. No. 46] is DISMISSED.

SO ORDERED.

ENTERED: May 4, 2016 

5
 /s/ Robert L. Miller, Jr. 

Judge, United States District Court

cc: I. Fisher

AUSA Grimmer

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