WASHINGTON v. USA

1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CALVIN WASHINGTON, 	)
)
Petitioner, 	)
)
v. 	) 	No. 1:23-cv-00540-SEB-KMB
)
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
Order Denying Motion for Relief Pursuant to 28 U.S.C. § 2255
For the reasons explained in this Order, Calvin Washington's motion for relief pursuant to
28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court
finds that a certificate of appealability should not issue.
I. The § 2255 Motion
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 "upon
the ground that the sentence was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C.
§ 2255(a). "Relief under this statute is available only in extraordinary situations, such as an error
of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which
results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th
Cir. 2013) (citing Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United
States, 113 F.3d 704, 705 (7th Cir. 1997)).
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II. Factual Background
A. Criminal Proceedings
In September 2020, Mr. Washington was charged with one count of possessing a firearm
as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). United States v. Washington, No. 1:20-
cr-00236-SEB-TAB, dkt. 5 (Crim. Dkt.). The government alleged Mr. Washington had four
predicate felonies, but the PSR revealed significantly more than those. Crim. Dkt. 73 at 10, 12-15.
His criminal history score was 25. Id. at 16.
More specifically, Mr. Washington's criminal history includes juvenile adjudications for
theft, robbery (twice), and assault (six times); as an adult, he has convictions for among things
assault or battery (four times), illegal possession of a firearm (twice), drug possession (four times,
including once possession with intent to sell), and multiple probation violations. Id. at 6-16. He
was on probation when he committed the current offense. Id. at 16. Mr. Washington has had nearly
constant interaction with the criminal justice system from 1996 until the time of his charges in this
case in 2019.
Mr. Washington signed an amended plea agreement in May 2022. Id. at 72. The parties
agreed to a sentencing range of 77 to 84 months. Id. at 4. The plea agreement also contains
provisions concerning his decision to waive his direct appeal and later legal challenges. Id. at 4,
10-12. In addition to a provision waiving his statutory right to appeal, the agreement states that
Mr. Washington also "waives any and all challenges to the statute to which the defendant is
pleading guilty on constitutional grounds, as well as any challenge that the defendant's admitted
conduct does not fall within the scope of the applicable statute." Id. at 10-11. He also waived his
right to bring a motion under § 2255, although that provision contains exceptions, including for a
claim of ineffective assistance of counsel. Id. at 11.
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Mr. Washington's agreement stated that he read the plea agreement, understood it, and
discussed it with his attorney. Id. at 13. The agreement also states: "My attorney has informed me,
and I understand, that I have the right to appeal any conviction and sentence that I receive, unless
I have waived my right to appeal as part of this Plea Agreement. If I have not waived my right to
appeal, I understand that I must file a Notice of Appeal within fourteen (14) days of the entry of
the judgment in this case; I further understand that the Clerk of the Court will prepare and file a
Notice of Appeal on my behalf if I ask that to be done." Id. at 14.
On June 14, 2022, the Court accepted Mr. Washington's guilty plea to the single felon-in-
possession charge and conducted a sentencing hearing, resulting in a sentence of 77 months. Crim.
Dkt. 76, 85. The Court entered judgment on June 17, 2022. Crim. Dkt. 77. During the hearing, Mr.
Washington agreed that he read his amended plea agreement and went over it "carefully" with his
attorney. Crim. Dkt. 85 at 6–7. Mr. Washington also confirmed that he would waive his right to
appeal if the agreement was accepted. Id. at 8-9, 18. The Court also suggested that Mr. Washington
talk further with his attorney about an appeal: "Now my understanding of your plea agreement is
that you waive the right to appeal this decision, but that's a decision you need to make with Mr.
Riggins. So be sure to consult with him. If there is a Notice of Appeal to be filed, it has to be filed
within two weeks of the entry of the judgment." Id. at 56. No notice of appeal was filed.
B. 2255 Proceedings
Mr. Washington originally filed a purported § 2255 motion on March 24, 2023. Dkt. 1. It
argued solely that his felon-in-possession conviction was unconstitutional under the 2nd
Amendment. However, the Court issued a Castro notice to Mr. Washington, noting that his
purported motion was inadequate and allowing him the opportunity to file an amended motion.
Dkt. 2. Mr. Washington did so on April 21, 2023. Dkt. 3. In this motion, in addition to raising the
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2nd Amendment issue, Mr. Washington alleged in part, "After my sentencing date, my lawyer was
suppose to file a direct appeal after 15 days, which he didn't. But I'm just now gaining knowledge
of this information." Id. at 3. He also alleged, "it was to have a direct appeal after 15 days of my
sentencing. But my lawyer did not make me aware of my Right. So I'm filing a 2255 do to
ineffective counsel." Id. at 9.
After the Court granted a waiver of attorney-client privilege, the government obtained a
letter from trial counsel, stating that although he would not "provide a formal sworn statement . . .
I can confidently state that Calvin Washington never expressed any desire to pursue an appeal
during our discussions. I thoroughly explained each paragraph of his plea agreement to him,
including available options for appeal." Dkt. 23-1. In reply to this filing, Mr. Washington argued
that trial counsel had been "operating in direct opposition to my best interest." Dkt. 25 at 1. The
Court set this case for a hearing upon receiving conflicting evidence regarding whether Mr.
Washington had clearly expressed a desire that trial counsel file a notice of appeal.1 Dkt. 29.
The Court appointed counsel for Mr. Washington and conducted said hearing on February
18, 2026. Dkt. 42. At the conclusion of the parties' presentation of evidence, the Court recessed,
and Mr. Washington consulted privately with counsel, after which Mr. Washington indicated that
he wanted to withdraw his claim of ineffective assistance related to the notice of appeal issue. Id.
After discussing the matter with Mr. Washington, the Court agreed to accept dismissal of this claim
with prejudice. Id. Mr. Washington stated, however, that he wanted to continue pursuing his claim
that his felon-in-possession conviction violates the 2nd Amendment. This Order addresses solely
that issue.
1 If Mr. Washington had requested trial counsel to file a notice of appeal but counsel did not do so, it would
have constituted ineffective assistance of counsel under Garza v. Idaho, 586 U.S. 232 (2019).
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III. Discussion
Mr. 	Washington 	contends 	that 	"18 	U.S.C. 	§ 	922(g)(1) 	felon-in-possession 	is
unconstitutional and is a clear violation of my 2nd Amendment right." Dkt. 3 at 4. For this
proposition, Mr. Washington cites New York Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022)
and Range v. Att'y Gen. United States, 69 F.4th 96 (3d Cir. 2023). Bruen provided new guidance
for addressing Second Amendment claims about firearms regulations, holding that New York's
handgun licensing scheme was unconstitutional. Id. at 70-71. Specifically, Bruen requires courts
to "examine our 'historical tradition of firearm regulation'" when determining whether a current
firearm regulation is lawful under the 2nd Amendment. United States v. Rahimi, 602 U.S. 680, 691
(2024) (quoting Bruen, 597 U.S. at 17).
In Range, the Third Circuit Court of Appeals, sitting en banc, originally held in 2023 that
this country's history and tradition did not support depriving a person convicted of food-stamp
fraud two decades earlier of his 2nd Amendment right to possess a firearm. Range, 69 F.4th at 106.
Subsequently, the Supreme Court granted certiorari in Range and remanded for the Third Circuit
to reconsider its decision in light of Rahimi, which had upheld the constitutionality of 18 U.S.C.
§ 922(g)(8)'s prohibition on firearm possession by persons subject to a domestic violence
restraining orders. On remand, the Third Circuit en banc majority reaffirmed its previous ruling,
stating:
Our decision today is a narrow one. Bryan Range challenged the constitutionality
of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat.
Ann. § 481(a). Range remains one of "the people" protected by the Second
Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is
protected by his right to keep and bear arms. More than two decades after he was
convicted of food-stamp fraud and completed his sentence, he sought protection
from prosecution under § 922(g)(1) for any future possession of a firearm. The
record contains no evidence that Range poses a physical danger to others. Because
the Government has not shown that our Republic has a longstanding history and
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tradition of depriving people like Range of their firearms, § 922(g)(1) cannot
constitutionally strip him of his Second Amendment rights.
Range v. Att'y Gen. United States, 124 F.4th 218, 232 (3d Cir. 2024).
As noted by the United States, Mr. Washington made no argument before he pled guilty
that § 922(g)(1) is unconstitutional, either facially or as applied to him. Furthermore, Mr.
Washington did not appeal after pleading guilty, and he has abandoned any claim that his trial
counsel was ineffective for not filing a notice of appeal. "Any claim that could have been raised
originally in the trial court and then on direct appeal that is raised for the first time on collateral
review is procedurally defaulted." Delatorre v. United States, 847 F.3d 837, 843 (7th Cir. 2017).
"Procedurally defaulted constitutional claims are not considered on collateral review unless the
petitioner shows either (1) actual innocence or (2) cause and prejudice." Id. (citing Bousley v.
United States, 523 U.S. 614, 622 (1998)).
The Court concludes that even if Mr. Washington could show "cause" for not timely raising
a constitutional challenge to § 922(g)(1),2 he could not show any resulting "prejudice," nor could
he show that he is "actually innocent."3 This Court – the undersigned specifically – recently
undertook a thorough historical analysis of whether § 922(g)(1) is facially unconstitutional post-
Bruen. See United States v. Reed, No. 1:24-CR-00055-SEB-MJD, 2025 WL 3173913 (S.D. Ind.
Nov. 13, 2025). The Court does not find it necessary to repeat the entirety of its analysis here. It
suffices to say that after conducting that analysis, this Court concluded "that § 922(g)(1) is facially
constitutional because 'the Second Amendment permits the disarmament of individuals who pose
2 "A change in the law may constitute cause for procedural default if it creates a claim that 'is so novel that
its legal basis is not reasonably available to counsel.'" White v. United States, 8 F.4th 547, 555-56 (7th Cir.
2021) (quoting Bousley, 523 U.S. at 622).
3 The Court need not delve into an analysis as to whether a change in the law such as that announced in
Bruen would be grounds for a claim of "actual innocence" as opposed to mere "legal insufficiency," which
is not enough to avoid procedural default. See Bousley, 523 U.S. at 623.
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a credible threat to the physical safety of others.'" Id. at * 5 (quoting Rahimi, 602 U.S. at 693).
Although the Seventh Circuit has not yet weighed in on this precise question,4 this Court followed
the overwhelming trend in cases in holding that § 922(g)(1) is facially constitutional. Id. at *4
(collecting cases). Not even the Range series of cases upon which Mr. Washington relies held that
§ 922(g)(1) is facially unconstitutional.
The Seventh Circuit has allowed for the possibility that convicted felons who claim to be
non-violent may bring as-applied challenges to § 922(g)(1). See United States v. Gay, 98 F.4th
843, 846 (7th Cir. 2024). And this was the full extent of Range's holding – that a person convicted
of one non-violent felony two decades in the past (and persons similarly situated) could not be
stripped of their 2nd Amendment rights. Even so, Mr. Washington's extensive non-stop criminal
record – which includes several violent offenses, firearm offenses, and multiple violations of
probation – demonstrates that § 922(g)(1), as applied to Mr. Washington, "comports with our
nation's history and tradition of disarming those found to pose a credible threat to public safety
and/or the physical safety of others." Reed, 2025 WL 3173913 at *5. In other words, Mr.
Washington does not "fit th[e] description" of a "'law-abiding responsible citizen[]" who cannot
be deprived of his 2nd Amendment right to possess a firearm. See Gay, 98 F.4th at 846 (quoting
Bruen, 597 U.S. at 26). Neither Bruen nor Range (which is not binding on this Court in any event)
provide any grounds for Mr. Washington to avoid procedural default.
It is unclear whether Mr. Washington has adequately, and separately alleged trial counsel
was ineffective for not raising a 2nd Amendment challenge to § 922(g)(1). Even if he had, such a
claim would be unsuccessful. A § 2255 movant claiming ineffective assistance bears the burden
4 	The 	Seventh 	Circuit 	heard 	arguments 	in 	December 	2024 	to 	determine 	the 	question 	of
whether § 922(g)(1) violates the constitution but has not yet issued a decision. See United States v. Prince,
No. 23-3155 (7th Cir. argued Dec. 11, 2024).
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of showing (1) that counsel's performance fell below objective standards for reasonably effective
representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 688–94 (1984); Resnick v. United States, 7 F.4th 611, 619 (7th Cir. 2021). Bruen was
decided after Mr. Washington pled guilty (albeit just a few days after). Generally, defense
attorneys are "not obliged to anticipate changes in the law" unless an argument "is sufficiently
foreshadowed in existing case law." Bridges v. United States, 991 F.3d 793, 804 (7th Cir. 2021).
Here, putting aside whether the Bruen analysis could have been foreseen, it was entirely silent as
to whether it affected the constitutionality of § 922(g)(1). And as indicated by the Reed case, this
Court would have rejected any "historical" 2nd Amendment challenge trial counsel could have
made to § 922(g)(1). Trial counsel was not ineffective for not challenging the constitutionality of
§ 922(g)(1). Mr. Washington has shown neither deficient performance by trial counsel nor
prejudice and counsel therefore was not ineffective.
IV. Conclusion
For the reasons explained in this Order, Calvin Washington is not entitled to relief on his
§ 2255 motion. His motion for relief pursuant to § 2255 is DENIED and this action is dismissed
with prejudice. Judgment consistent with this Order shall now issue and the Clerk shall docket
a copy of this Order in No. 1:20-cr-00236-SEB-TAB-1. The motion to vacate, Crim. Dkt. 79,
shall also be terminated in the underlying criminal action.
V. Denial of Certificate of Appealability
A habeas petitioner does not have the absolute right to appeal a district court's denial of his
habeas petition, rather, he must first request a certificate of appealability. See Miller–El v. Cockrell,
537 U.S. 322, 335 (2003); Peterson v. Douma, 751 F.3d 524, 528 (7th Cir. 2014). 	Pursuant to
Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 proceedings,
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and 28 U.S.C. § 2253(c), the Court finds that Mr. Washington has failed to show that reasonable
jurists would find "it debatable whether the petition states a valid claim of the denial of a
constitutional right" and "debatable whether [this Court] was correct in its procedural ruling."
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of
appealability.
IT IS SO ORDERED.
Date: __________________
Distribution:
All ECF-registered counsel of record via email
CALVIN WASHINGTON
Booking No. 202400007636
Ramsey County (MN) Adult Detention Center
425 Grove St.
Saint Paul, MN 55101
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
3/6/2026
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