James Pinkney v. USA
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Michael S. Kanne, Circuit Judge and Michael Y. Scudder, Circuit Judge. [6946475-1] [6946475] [17-2339]
Case: 17-2339
Document: 32
Filed: 08/21/2018
Pages: 4
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 6, 2018
Decided August 21, 2018
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 17‐2339
JAMES PINKNEY,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 16 C 6600
Matthew F. Kennelly,
Judge.
O R D E R
James Pinkney moved pursuant to 28 U.S.C. § 2255 to vacate his sentence under
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), arguing that his previous Illinois
robbery convictions were not “violent felon[ies]” under the Act. The district court
denied the motion, but it granted a certificate of appealability. We later decided that
Illinois armed robbery qualifies as a “violent felony” under the ACCA. Shields v. United
States, 885 F.3d 1020, 1024 (7th Cir. 2018). Shields applies to Pinkney’s offense of simple
robbery, and so we affirm the district court’s judgment.
Case: 17-2339
No. 17‐2339
Document: 32
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I
Pinkney was charged in 2010 with possessing a firearm as a felon, in violation of
18 U.S.C. § 922(g)(1). He entered into a plea agreement in 2011. In that agreement, he
acknowledged that he had been convicted in Illinois of burglary and robbery in 1985,
and again of robbery in Illinois in 1986. The district court sentenced Pinkney to
180 months’ imprisonment, the mandatory minimum sentence for a defendant with at
least three qualifying “violent felony” convictions under the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(1).
Pinkney moved in 2016 to vacate his sentence under 28 U.S.C. § 2255, arguing
that the length of the sentence he received under the ACCA violated his due‐process
rights in light of the Supreme Court’s decision in Samuel Johnson v. United States,
135 S. Ct. 2551 (2015). He asserted that because Samuel Johnson held unconstitutional the
“residual clause” in § 924(e)(2)(B)(ii), the ACCA sentencing enhancement was proper
only if his two prior convictions for robbery qualified as violent felonies under the
“elements clause,” § 924(e)(2)(B)(i). The elements clause defines “violent felony” as a
felony that “has as an element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. §§ 924(e)(2)(B)(i). Pinkney argued that
the force required to commit robbery in Illinois is less than the amount required to
make a crime a “violent felony”—that is, “force capable of causing physical pain or
injury to another person,” Curtis Johnson v. United States, 559 U.S. 133, 140 (2010). The
government argued in response that Pinkney was time‐barred from making this
argument, and moreover, that the argument was meritless because Illinois’s robbery
offense requires the amount of force necessary to qualify as a violent felony.
The district court determined that Pinkney’s motion was not time‐barred, but
denied it on the merits. It agreed with the government’s understanding of the amount
of force needed for a conviction under the Illinois robbery statute. Nevertheless, the
judge granted a certificate of appealability on the issue because, at the time, the
question was still debatable in this circuit.
II
On appeal, Pinkney again argues that his Illinois robbery offenses do not
necessarily entail violent force. The government’s first response is that it is too late for
Pinkney to argue about the amount of force required to be convicted of Illinois robbery.
Under 28 U.S.C. § 2255(f)(3), Pinkney was required to move to vacate his
sentence within one year of the date on which the right he relies upon “was recognized
by the Supreme Court and made retroactively applicable to cases on collateral review.”
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Id. The government argues that when a petitioner premises his § 2255 motion on the
assertion that the district judge “misapplied the elements clause,” he relies on Curtis
Johnson. See Douglas v. United States, 858 F.3d 1069, 1070 (7th Cir.), cert. denied, 138 S. Ct.
565 (2017). “Curtis Johnson, a statutory decision, was issued about five years before
[Pinkney] filed his § 2255 motion, which,” according to the government, makes the
motion untimely. See id. (citing 28 U.S.C. § 2255(f)(3)). This is because “[Samuel] Johnson
does not have anything to do with the elements clause of … the Armed Career Criminal
Act,” and so prisoners such as Pinkney do not get “a new one‐year period to seek
collateral relief on a theory that the elements clause does not apply to a particular
conviction.” Stanley v. United States, 827 F.3d 562, 565 (7th Cir. 2016); Douglas, 858 F.3d at
1070.
We consider the question whether Pinkney’s motion is time‐barred to be a close
one. As Pinkney points out, the government’s invocation of the time bar directly
contradicts some of the language in his plea agreement. The agreement expressly states
that his 1985 Illinois robbery conviction is a “‘violent felony’ under 18 U.S.C.
§§ 924(e)(1) & (e)(2)(B)(ii).” Subsection (e)(1) just sets forth the mandatory minimum
sentence for armed career criminals. Subsection (e)(2)(B)(ii) contains two possible
definitions for “violent felony”: first, the enumerated offenses; and second, those that
fall within the now‐discarded residual clause because they “otherwise involve conduct
that presents a serious potential risk of physical injury to another.” Because robbery is
not one of the enumerated offenses, Pinkney’s plea agreement must have applied the
residual clause to Pinkney’s 1985 Illinois robbery convictions. Thus, Pinckney argues,
until the Supreme Court decided in Samuel Johnson that the residual clause is
unconstitutional, 135 S. Ct. at 2557, he could not have challenged the application of the
ACCA to his 1985 Illinois robbery and his motion is timely. See 28 U.S.C. § 2255(f).
Moreover, he asserts, until Samuel Johnson, there was no incentive to challenge the
elements of any particular felony that the district court had determined was “violent”
under the ACCA.
Two recent decisions support Pinkney’s timeliness argument. In Van Cannon
v. United States, 890 F.3d 656 (7th Cir. 2018), we determined that the time bar did not
apply to a § 2255 motion that asserted that Minnesota burglary was not a violent felony.
Id. at 661–62. “To win § 2255 relief, Van Cannon had to establish a Johnson error and that
the error was harmful.” Id. at 661 (emphasis in original). Thus, when the petitioner
“maintained that the Johnson error” he presented “was prejudicial in light” of other
Supreme Court precedent, his motion was timely. Id.
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And in Cross v. United States, 892 F.3d 288 (7th Cir. 2018), we explained that
before Samuel Johnson, a petitioner “had no basis to assert that his sentence was illegal
and thus he could not claim a right to be released. Curtis Johnson did not change that
fact: all it did was to eliminate the elements clause as a basis for” some state robbery
convictions to qualify as violent felonies. Id. at 297. The petitioner’s claim under Curtis
Johnson “stayed until [Samuel] Johnson. Only then could [he] file a nonfrivolous motion
for relief.” Id.
We need not say more about this point, however, because “it is permissible to
reject a petition on the merits without resolving a limitations defense,” Estremera
v. United States, 724 F.3d 773, 775 (7th Cir. 2013). “It makes sense to tackle the merits first
when they are easy and the limitations question hard.” Id. And the merits of this case
are straightforward in light of our decision in Shields, in which we revisited Illinois
robbery in light of Curtis Johnson and reaffirmed that “Illinois courts require sufficient
force for robbery convictions to be predicate violent felonies.” Shields, 885 F.3d at 1024;
see also United States v. Chagoya‐Morales, 859 F.3d 411, 421–22 (7th Cir. 2017) (reviewing
state‐court definition of force in Illinois robbery statute underlying aggravated robbery
and concluding robbery required “‘force’ … sufficient to constitute a ‘crime of
violence’”).
It is true, as Pinkney points out, that the conviction at issue in Shields was for
armed robbery, 885 F.3d at 1023–24, whereas Pinkney’s convictions are for simple
robbery. Pinkney relies on this distinction to argue that Shields does not apply, because
armed robbery has an additional force element. But, as we pointed out in Shields, the
Illinois armed‐robbery statute, 720 ILCS 5/18‐2, incorporates by reference the force
element of the Illinois simple robbery statute. 885 F.3d at 1023–24 (quoting 720 ILCS
5/18‐1(a) (Robbery is committed with “the use of force or by threatening the imminent
use of force.”)). In Shields, we assessed “how Illinois courts apply that statute to convict
someone of robbery.” Id. at 1024 (emphasis added). And we concluded that because
Illinois simple robbery qualified as a violent felony under the ACCA, Illinois armed
robbery did as well. Id. at 1023–24.
That conclusion—that the force required to commit simple robbery in Illinois
satisfies the definition of “physical force” for purposes of § 924(e)(2)(B)(i)—controls the
outcome of this appeal. Though Pinkney was convicted in 1985 and 1986 under a
version of the robbery statute older than the one analyzed in Shields, the force element
remained the same throughout the statutes’ revisions and therefore does not affect our
analysis. Compare Shields, 885 F.3d at 1023–24, with ILL. REV. STAT. 1985, ch. 38, ¶ 18‐1.
We therefore AFFIRM the district court’s judgment.
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