Grammer v. United States of America

Filing 7

OPINION & ORDER entered by Judge Joe Billy McDade on 10/17/2016. Petitioners § 2255 Motion 1 is DENIED. Respondents Motion for Stay 5 is DENIED. Petitioners Motion for Extension of Time 6 is DENIED. Petitioners Motion for Counsel 6 is DENIED. The Court DECLINES to issue a certificate of appealability. CASE IS TERMINATED. Clerk is requested to mail plaintiff a copy of this order. (RK, ilcd) (Copy conventionally mailed to pro se plaintiff at address on NEF.)

E-FILED

Tuesday, 18 October, 2016 10:33:49 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DUSTIN M. GRAMMER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:16-cv-01225-JBM

OPINION & ORDER
The matter before the Court is Petitioner, Dustin M. Grammer’s Motion under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody. (Doc. 1). Petitioner was convicted for conspiracy to manufacture and
distribute methamphetamine. Because Petitioner had two prior convictions for
domestic battery, he qualified as a career offender under the Sentencing Guidelines
and is currently serving a sentence of 171 months’ imprisonment. Petitioner argues
that under the Supreme Court’s holdings in Johnson v. United States, 135 S. Ct. 2251
(2015), and Welch v. United States, 136 S. Ct. 1257 (2016), his domestic battery
convictions do not qualify as crimes of violence; therefore, he alleges his sentence is
unlawful. For the reasons stated below, Petitioner’s motion is DENIED.
There are three additional pending motions that also need to be resolved. First,
Petitioner moved for an extension of time to respond to the Court’s request for
supplemental briefing. (Doc. 6). Because the Court can resolve the matter without the
supplemental briefing, the motion is DENIED. Second, Petitioner moved for an

appointment of counsel. (Doc. 6) However, Petitioner offered no proof that he had
attempted to find counsel on his own; therefore, Petitioner’s motion is DENIED.
Third, Respondent moved to stay consideration of the motion pending the Supreme
Court’s anticipated decision in Beckles v. United States. (Doc. 5). Because Petitioner’s
§ 2255 Motion is not affected by the issues in Beckles, Respondent’s Motion to Stay is
DENIED.
BACKGROUND
On August 14, 2012, Petitioner pleaded guilty to Conspiracy to Manufacture
and Distribute Methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.
(Judgment, United States v. Grammer, No. 12-cr-10015-003 (C.D. Ill. 2000), Doc. 119
at 1). The plea agreement included several waivers, including a waiver of Petitioner’s
right to challenge his sentence by a collateral attack. (Plea Agreement and
Stipulation of Facts, Doc. 70 at 5-7, No. 12-cr-10015-003). He was originally sentenced
to lifetime imprisonment. (Judgment, Doc. 119 at 2, No. 12-cr-10015-003). This was
later reduced to 171 months pursuant to a retroactive change in his sentencing
guideline range. (Amended Judgment Reducing Sentence, Doc. 202, No. 12-cr-10015003).
The sentence was based off of the Court’s calculated guidelines range of 262
months to 327 months of imprisonment, based on a total offense level of 34 and a
criminal history category of VI.1 (Presentence Report, No. 12-cr-10015-003, Doc. 117

The Presentence Report indicated that “the statutorily required minimum sentence
of life is greater than the maximum of the applicable guideline range,” and ultimately
concluded that Petitioner’s guideline term of imprisonment is life.” (Presentence
Report, No. 12-cr-10015-003, Doc. 117 at 25).

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at 25). The Court’s calculation of Petitioner’s total offense level included a career
offender sentence enhancement. The Court concluded that Petitioner qualified as a
career offender because of two prior convictions: a domestic battery conviction in
Tazewell County, Illinois in 1999 and a second domestic battery conviction in
Tazewell County, Illinois in 2005. (Presentence Report, No. 12-cr-10015-003, Doc. 117
at 11). Both convictions for domestic battery were for violations of subsection (1) of
Illinois’s statute, which states: “a person commits domestic battery if he or she
knowingly without legal justification by any means causes bodily harm to any family
or household member,” in violation of 720 ILCS § 5/12-3.2(a)(1). (Doc. 4-1; Doc. 4-2).
On June 20, 2016, Petitioner filed Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 1). Petitioner
brought forth one argument: that “My 4B1.1 enhancement is under [the] residual
clause [and] is now not usable.” (Doc. 1 at 4).2 Petitioner alleged that his sentence
was unlawful because of the recent United States Supreme Court’s decisions in
Johnson v. United States, 135 S. Ct. 2251 (2015), and Welch v. United States, 136 S.
Ct. 1257 (2016). (Doc. 1).
On June 21, 2016 the Court found on initial review that Petitioner’s claim was
not wholly without merit; therefore, the Court required the government to respond.
(Doc. 3). The Respondent filed its Response on June 28, 2016. (Doc. 4). The
Respondent made four claims: 1) that Johnson cannot be applied to the United States
Sentencing Guidelines on collateral review, 2) that Petitioner had procedurally

Petitioner listed three “grounds” for habeas. However, all three grounds are that his
sentence was enhance under the residual; therefore, despite listing three grounds,
Petitioner is only making one argument.

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defaulted this argument, 3) that Petitioner had waived his right to collaterally attack
his sentence, and 4) that Petitioner’s claim was meritless because he had been
convicted as a career offender under the force clause. Id. Petitioner had twenty-eight
days to reply to the Response. Petitioner did not file a reply, nor did Petitioner seek
an extension of time to file a response. Additionally, Petitioner did not request counsel
at this time.
On August 29, 2016, the United States Court of Appeals for the Seventh Circuit
issued an opinion in United States v. Hurlburt, No. 14-cr-62-JDP, 2016 U.S. App.
LEXIS 15963. In Hurlburt, the Seventh Circuit found on direct review that the
Sentencing Guideline’s residual clause, under U.S.S.G. § 4B1.2, was void for
vagueness under Johnson. Id. On September 15, 2016, the Court issued a text order
requesting that the parties address whether Hurlburt applied to Petitioner’s § 2255
Motion. On September 19, Respondent filed supplemental briefing arguing that
Hurlburt did not apply and moved for a stay of the proceedings if the Court could not
resolve the case on “procedural, waiver, or merits grounds.” (Doc. 5). On September
29, 2016, Petitioner moved for a ninety day extension to respond to the Court’s
Hurlburt text order and to request counsel. (Doc. 6).
LEGAL STANDARDS
Under 28 U.S.C. § 2255, a federal prisoner may challenge a sentence:
“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, may move the court which imposed the sentence to vacate, set
aside or correct the sentence.”

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§ 2255(a). However, § 2255 relief is appropriate only for errors of law that are 1)
jurisdictional, 2) constitutional, or 3) constitute a “fundamental defect which
inherently results in a complete miscarriage of justice.” United States v. Garcia, No.
3:13-cr-52-JD, 2016 U.S. Dist. LEXIS 97000 (N.D. Ind. July 25, 2016) (citing Harris
v. United States, 366 F.3d 593, 594 (7th Cir. 2004). A § 2255 motion is not a substitute
for a direct appeal. Id. (citing Olmstead v. United States, 55 F.3d 316, 319 (7th Cir.
1995); see also Bousley v. United States, 523 U.S. 614, 621 (1998) (rejecting the use of
habeas as a direct appeal).
DISCUSSION
I. SECTION 2255 MOTION
Petitioner’s § 2255 Motion is denied for two separate reasons, both of which
support the denial of his motion. First, Petitioner waived his right to collateral
review.3 Second, even if Petitioner had not waived his right to collateral attack,
Petitioner’s two prior convictions are considered “crimes of violence” under the force
clause, which is distinct from the residual clause. Therefore, they support Petitioner’s
sentence enhancement for being a career offender. Because both of these issues are
dispositive, the petition is denied.
A. WAIVER
Additionally, the Petitioner’s Motion is denied because the Petitioner waived
his right to collateral review. “A defendant may validly waive both his right to a direct
appeal and his right to collateral review under § 2255 as part of his plea agreement.”

Respondent brought forth four arguments for denying Petitioner’s Motion. However,
the Court finds it unnecessary to address either of the other two arguments because
the convictions under the force clause and the waiver arguments are dispositive.
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Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). Waivers of direct appeal
and collateral appeal are generally enforceable. Hurlow v. United States, 726 F.3d
958, 964 (7th Cir. 2013). The Seventh Circuit has recognized few exceptions to the
general enforceability, which include: involuntary plea agreements, the district
court’s reliance on an impermissible factor (like race), the sentence exceeds the
statutory maximum, or the defendant claims ineffective assistance of counsel during
the negotiation of the plea agreement. Keller, 657 F.3d at 681 (citations omitted).
None of these exceptions appear to apply.
Petitioner’s plea agreement contained a page-long waiver of collateral review.
The waiver states that:
“Understanding those rights, and having thoroughly discussed those
rights with the defendant’s attorney, the defendant knowingly and
voluntarily waives his right to collaterally attack the conviction and/or
sentence . . . . The rights waived by the defendant include his right to
challenge the amount of any fine or restitution, in any collateral attack,
including, but not limited to, a motion brought under Title 28, United
States Code, Section 2255, excepting only those claims which relate
directly to the negotiation of this waiver itself.”
No. 12-cr-10015-003 (Doc. 70). The terms of the waiver clearly include Petitioner’s
present motion to challenge his sentence under § 2255. Petitioner has offered no
challenge to the validity of the waiver. Nor has Petitioner alleged that he did not
knowingly and voluntarily plead. Additionally, Petitioner has not alleged that any of
the exceptions to the waiver should apply. Therefore, the Court finds that the waiver
in Petitioner’s plea agreement is valid. Because Petitioner’s current motion falls
within the scope of the waiver and no exception applies, Petitioner’s motion is barred
by his plea agreement and must be denied.

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B. CRIME OF VIOLENCE
Even if Petitioner had not waived his right to collateral appeal, the Court
denies Petitioner’s § 2255 motion because he was deemed a career offender under the
force clause of the Guidelines. Because the force clause is distinct from the residual
clause, neither Johnson nor Hurlburt affect Petitioner’s career offender status.
Therefore, Petitioner’s sentence is lawful and his Petition is denied.
A defendant is subject to the career offender sentence enhancement if the
defendant meets all three requirements of U.S.S.G. § 4B1.1. Those three
requirements are:
1. The Defendant is at least eighteen years old at the time of the current offense.
2. The offense is a felony that is either a crime of violence or a controlled
substance offense.
3. The Defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.
Id. The Petitioner meets the first two requirements. Petitioner was at least 30 years
old in 2009 when the conspiracy—his current offense—began. (Presentence Report,
No. 12-cr-10015-003, Doc. 117 at 3-4). Additionally, Petitioner’s current charge was
for Conspiracy to Manufacture and Distribute Methamphetamine, which is a
controlled substance offense. Id. at 2.
Therefore, Petitioner’s status as a career offender turns on whether his prior
two felonies are “crimes of violence.” Section 4B1.2(a) of the Sentencing Guidelines
defines a “crime of violence” as:
“any offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that –
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(1) has as an element the use, attempted use, or threatened use
of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use
of explosive, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2. Subsection (1) is known as the force clause. Subsection (2)’s
language which states a crime of violence is one that “otherwise involves conduct that
presents a serious potential risk of physical injury to another” is known as the
residual clause. The subsections are separate clauses. If the conviction qualifies
under either subsection, then it is deemed a “crime of violence.”
Petitioner’s two prior felony convictions were for Illinois’s domestic battery
statute, which constitutes a crime of violence under the force clause of the Sentencing
Guidelines. Illinois’s domestic battery statute constitutes of two sections:
“A person commits domestic battery if he or she knowingly without legal
justification by any means:
(1) causes bodily harm to any family or household member;
(2) makes physical contact of an insulting or provoking nature with
any family or household member.”
720 ILCS § 5/12-3.2(a). Binding Seventh Circuit precedent holds that “a conviction
for domestic battery under Illinois law necessarily requires proving physical force”
and is therefore a crime of violence. United States v. Waters, 823 F.3d 1062, 1064 (7th
Cir. 2016) (affirming cases holding a conviction of domestic battery under § 5/123.2(a)(1) as a crime of violence).
Petitioner has been convicted of domestic battery under § 5/12-3.2(a)(1) twice.
On February 24, 1999, Petitioner pleaded guilty to domestic battery in violation of §
5/12-3.2(a)(1). (Doc. 4-1 at 3-9). Then, on December 19, 2005, Petitioner pleaded guilty
to a second domestic battery charge in violation of § 5/12-3.2(a)(1). (Doc. 4-2 at 3-6).

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Because both of Petitioner’s convictions for domestic violence were for violations of §
5/12-3.2(a)(1), both of his convictions are crimes of violence. Therefore, the third
career offender requirement is met and the sentence enhancement was lawful.
Petitioner argues that his career offender status is unlawful under the
Supreme Court’s decisions in Johnson and Welch. In Johnson, the United States
Supreme Court held that the residual clause of the Armed Career Criminal Act was
unconstitutionally void for vagueness. 135 S. Ct. at 2563. In Welch, the United States
Supreme Court held that Johnson was a substantive change that could be applied
retroactively on collateral attacks. 136 S. Ct. at 1265. Since Johnson and Welch,
courts have grappled with whether other identically worded residual clauses, which
appear in other statutes, are also void for vagueness. Hurlburt, 2016 U.S. App. LEXIS
15963 at *20 (collecting cases). In Hurlburt, the United States Court of Appeals for
the Seventh Circuit applied Johnson to the residual clause of the Sentencing
Guidelines and held that it was void for vagueness. Id. This meant that the career
offender status was unlawful for offenders whose prior two convictions were deemed
“crimes of violence” under the residual clause.
Petitioner’s argument fails because his prior convictions are “crimes of
violence” under the force clause, not the residual clause. Therefore, Johnson, Welch,
and Hurlburt have no effect on Petitioner’s sentence. United States v. Smith, No. 1520021-001 (7th Cir. Oct. 7, 2016) (explaining that neither Johnson nor Hurlburt
effects convictions under the force clause)4; see also Waters, 823 F.3d at 1064 (citing

The Seventh Circuit opinion refers to the force clause as the “elements clause.” It is
the same clause.
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People v. Mays, 437 N.E.2d 633, 635-36 (Ill. 1982)) (explaining that a conviction of
Illinois’s domestic battery statute was unaffected by Johnson because it is a “crime of
violence” under the force clause). Therefore, a conviction for domestic battery under
§ 5/12-3.2(a)(1) is clearly a “crime of violence” under the Sentencing Guidelines and
will qualify an individual for career offender sentencing enhancements.
II. MOTION TO STAY
Respondent’s Motion to Stay the Proceedings is denied because the outcome of
Beckles v. United States will not affect the outcome of these proceedings. Respondent
requested that if the court could not currently resolve the matter on “procedural,
waiver, or merits grounds” that the Court should stay the proceedings pending
Beckles v. United States. (Doc. 5). The Supreme Court has granted certiorari in
Beckles v. United States to determine several issues, including: whether Johnson’s
constitutional rule applies to the Guidelines and whether Johnson applies
retroactively on collateral review to sentences enhanced under the residual clause of
the Guidelines. No. 15-8544, 2016 U.S. LEXIS 4142, 2016 WL 1029080 (June 27,
2016); Petition for Writ of Certiorari, Beckles v. United States, No. 15-8544 (Mar. 9,
2016).
However, the outcome of Beckles will not affect the outcome of the matter at
bar. Beckles pertains to the residual clause, but Petitioner was convicted as a career
offender under the force clause—not the residual clause. Therefore, even if the
Supreme Court finds that Johnson applies on collateral attack to the residual clause
of the United States Sentencing Guidelines, it cannot save Petitioner. Because

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Beckles will not affect the outcome of this case, a stay is unwarranted and
Respondent’s motion is denied.
III.

MOTION FOR COUNSEL

Petitioner’s Motion for Counsel is denied because he has made no attempts to
acquire counsel. In his Motion to Request Counsel, Petitioner requested that the
Court appoint him counsel. (Doc. 6). A civil litigant is not entitled to a court-appointed
attorney. Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). However, the
Court may request an attorney to represent an indigent litigant. 28 U.S.C. §
1915(e)(1). The decision of whether to appoint counsel is generally left to the
discretion of the Court. Wilson v. Duckworth, 716 F.2d 415, 418 (7th Cir. 1983).
However, the litigant must first show that he made a reasonable attempt to acquire
counsel without Court intervention. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).
If the litigant has made the proper attempt, the Court considers whether, “given the
difficulty of the case,” he appears able to litigate it himself, and, if not, whether
appointed counsel would be “reasonably likely to alter the outcome.” Id. at 655-56,
660. In this case, Petitioner has not demonstrated that he made a reasonable attempt
to acquire counsel without Court intervention. For that reason, the Court denies his
request. See id. at 654.
IV.

MOTION TO EXTEND TIME
Petitioner’s Motion to Extend Time to File a Response to the Court’s Order is

denied as unnecessary.5 Upon the release of United States v. Hulburt, the Court

Petitioner has never moved for an extension to reply to Respondent’s Response. The
Response was file on June 28, 2016. (Doc. 4). A failure to reply to a respond can be
deemed a waiver. United States v. Farris, 532 F.3d 615, 619 (7th Cir. 2008).
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issued a text order allowing the parties to provide supplemental briefing on how
Hulburt may affect the case at bar and gave the parties three weeks to respond. On
September 29, 2016, Petitioner requested three months to respond to the Court’s text
order. However, as explained above, Hulburt does not have an effect on the case at
bar. Therefore, an extension of 90 days to respond to Hurlburt is unnecessary because
it cannot effect the outcome of this case. An extension will only delay the inevitable.
Petitioner’s motion is denied.
V. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the
United States District Courts, the Court must “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” A court may only
issue a certificate of appealability “if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c); Rule 11, Rules Governing
Section 2255 Proceedings for the United States District Courts. A “substantial
showing” is met when a “reasonable jurist could debate whether (or, for that matter,
agree that) the petition should be resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (omitting citations). A petitioner need not show
that the appeal will succeed, but he must show “‘something more than the absence of
frivolity’ or the existence of mere ‘good faith’” on his part. Miller-El v. Cockrell, 537
U.S. 322, 337-38 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). If the
district court denies the request, a petitioner may request that a circuit judge issue
the certificate. Fed. R. App. P. 22(b)(1).

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Consistent with the discussion above, the Court finds that no reasonable
jurists would differ on the Court’s treatment of Petitioner’s 2255 motion. Therefore,
the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
CONCLUSION
For the above mentioned reasons, Petitioner’s § 2255 Motion (Doc. 1) is
DENIED. Respondent’s Motion for Stay (Doc. 5) is DENIED. Petitioner’s Motion for
Extension of Time (Doc. 6) is DENIED. Petitioner’s Motion for Counsel (Doc. 6) is
DENIED. The Court DECLINES to issue a certificate of appealability. CASE IS
TERMINATED. Clerk is requested to mail plaintiff a copy of this order.

Entered this _17th__ day of October, 2016.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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