Robinson v. Krueger
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 6/1/2017. IT IS THEREFORE ORDERED that Petitioner's Motion to Alter or Amend Judgment (Doc. 4 ) is GRANTED. Petitioner's Motion for Assignment of a New Judge (Doc. 4 ) is DENIED. The Co urt's Order dated May 1, 2017 (Doc 2 ) and the accompanying Judgment (Doc. 3 ) are VACATED. Petitioner's case is REOPENED. Upon reconsideration, the Court finds Petitioner is not entitled to relief pursuant to 28 U.S.C. § 2241. Thus, Petitioner's Petition (Doc. 1 ) is DENIED pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. SEE FULL WRITTEN ORDER & OPINION.(SL, ilcd)
E-FILED
Friday, 02 June, 2017 09:13:56 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CHARLES R. ROBINSON, IV,
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Petitioner,
v.
J.E. KRUEGER
Respondent.
Case No. 1:17-cv-01187-JBM
ORDER & OPINION
This matter is before the Court on Petitioner Charles R. Robinson IV’s Motion
to Alter or Amend Judgment pursuant to Federal Rule of Civil Procedure 59(e). (Doc.
4). For the reasons explained below, Petitioner’s Motion is granted in part, denied in
part. Petitioner’s Motion for Assignment of a Different Judge is denied. (Doc. 4).
Petitioner’s Motion to Alter or Amend Judgment is granted. (Doc. 4).
For the reasons explained below, upon reconsideration, Petitioner’s Petition for
Writ of Habeas Corpus is denied. (Doc. 1).
BACKGROUND
In December of 1997, a jury convicted Petitioner of one count of possession of
both cocaine and cocaine base with the intent to distribute, one count of possession of
only cocaine base with intent to distribute, and one count of simple possession of
cocaine base. United States v. Robinson, 164 F.3d 1068, 1069 (7th Cir. 1999). He was
originally sentenced to two forty-year and one twenty-year terms of imprisonment to
be served consecutively for a total of 100 years imprisonment. United States v.
Robinson, No. 99-4071, 2000 U.S. App. LEXIS 11822, at *6 (7th Cir. May 23, 2000).
His sentence was reduced in 2016 to two thirty-year and one twenty-year terms of
imprisonment to be served concurrently. See Amended Judgment (Doc. 286), United
States v. Robinson, No. 3:97-cr-30025-RM-1 (C.D. Ill. May 27, 2016). Petitioner is
currently serving that sentence at the Federal Correctional Institute in Pekin,
Illinois. (Doc. 1 at 1).
Petitioner has an extensive litigation history at both the district court level
and before the United States Court of Appeals for the Seventh Circuit. Robinson v.
United States, 416 F.3d 645, 646 (7th Cir. 2005) (noting that this was the fourth time
Petitioner’s case had appeared before them). The Court notes that Petitioner filed his
first motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 in
2003, which was deemed untimely. Id. at 647. The Court also notes that Petitioner
received permission to file a second or successive § 2255 motion from the Seventh
Circuit to challenge his sentence under United States v. Johnson, 135 S. Ct. 2551
(2015). Petitioner filed his second § 2255 motion and challenged whether his previous
Illinois conviction for attempted arson was still considered a crime of violence.
Robinson v. United States, No. 3:16-cv-03203-RM (C.D. Ill. July 13, 2016). The Court
notes that Petitioner’s second § 2255 is still pending.
On May 1, 2017, Petitioner filed this Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. Petitioner argues that under Mathis v. United States,
136 S. Ct. 2243 (2016), his prior Illinois conviction for robbery no longer qualifies as
a crime of violence predicate offense for enhancing his sentence as a career offender
under the United States Sentencing Guidelines § 4B1.1.
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On May 16, 2017, the Court issued an order denying Petitioner’s § 2241
Petition for several reasons. (Doc. 2). First, the Court found that Petitioner could not
meet the Savings Clause requirements to be permitted to bring a § 2241. Second, the
Court found that the Petition failed on its merits because Petitioner’s predicate crime
was a crime of violence under both the elements clause and was an enumerated crime.
On May 24, 2017, Petitioner filed an accusatory motion for the assignment of
a different judge and to alter or amend judgment, pursuant to Fed. R. Civ. P. 59(e).
I. MOTION FOR ASSIGNMENT OF A DIFFERENT JUDGE
After denying the Petition, Petitioner caustically attacks the Court and the
Court’s prior rulings, both against Petitioner and other prisoner litigants. Petitioner
accuses the Court of conduct “unbecoming of a United States District Judge” and
accuses the Court of a “deep rooted sense of malice.”1 (Doc. 1). Petitioner requests the
Court to recuse itself and reassign its cases because he believes there is an
“appearance” of injustice.
Disagreement with the Court’s previous rulings is not an appropriate cause for
judicial recusal. Under 28 U.S.C. § 455(a), a federal judge must disqualify himself in
any proceeding in which his impartiality might reasonably be questioned by a
reasonable, well-informed observer. Matter of Hatcher, 150 F.3d 631, 637 (7th Cir.
1998). However, that impartiality must almost always be for an extrajudicial reason,
The Court cautions Petitioner against using a caustic and disrespectful tone with
the Court, even if Petitioner disagrees with the Court’s decision. Comments like those
and the following are disrespectful and inappropriate in pleadings to the Court: “This
Court should not have to be reminded of that which it should know, the law. But any
litigant, even a pro se one, would be remiss if they did not remind the Court of
something so remedial, which is that District Courts don’t overrule Appellate Courts.”
(Doc. 4 at 6).
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not because of a disagreement with judicial rulings, routine trial administration
efforts, or ordinary admonishments. See Liteky v. United States, 510 U.S. 540 (1994).
Therefore, when a motion for recusal fails to set forth an extrajudicial source for the
alleged bias and no such source is apparent, the motion should be denied. Spangler
v. Sears, Roebuck & Co., 759 F. Supp. 1327, 1332 (S.D. Ind. 1991).
Petitioner’s dissatisfaction with the Court’s rulings are not evidence of bias,
nor do they provide a valid basis for a change of judge. See United States v. Grinnell
Corp., 384 U.S. 563, 583 (1966). Petitioner has provided nothing to support his claim
for a new judge other than his disagreement with the Court’s prior rulings. Therefore,
Petitioner’s motion for a new judge is denied.
II. MOTION TO ALTER OR AMEND JUDGMENT
Petitioner moved to alter or amend judgment because the Sentencing
Guidelines were considered mandatory when he was sentenced. Therefore, he argues
that Beckles v. United States, 137 S. Ct. 886 (2017), is inapplicable to his designation
as a career offender. For the reasons explained below, the Court will grant
Petitioner’s Motion to Alter or Amend Judgment. In order to succeed on a Rule 59(e)
Motion, the petitioner “must clearly establish either a manifest error of law or fact or
must present newly discovered evidence.” LB Credit Corp. v. Resolution Trust Corp.,
49 F.3d 1263, 1267 (7th Cir. 1995) (citing FDIC v. Meyer, 781 F.2d 1260, 1268 (7th
Cir. 1986)).
Although Petitioner was resentenced in 2015 and 2016, when the Sentencing
Guidelines were not mandatory, the Sentencing Judge was unable to reconsider
whether defendant qualified as a career offender, which was imposed on him under
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the mandatory Sentencing Guidelines. See United States v. Robinson, 812 F.3d 1130
(7th Cir. 2017). Therefore, the Court finds that its analysis of the enumerated crimes
listed within Application Note 1 of USSG § 4B1.2 is legally correct; however it is not
applicable to Petitioner, who was deemed a career offender when the Sentencing
Guidelines were mandatory. Therefore, the Court grants Petitioner’s Motion to Alter
or Amend Judgment and will reconsider Petitioner’s Petition for Writ of Habeas
Corpus.
III.
PETITION FOR WRIT OF HABEAS CORPUS
Petitioner’s claim must still be denied for two reasons. First, Petitioner fails to
satisfy the Davenport requirements in order to be allowed to bring a § 2241 petition
instead of a § 2255 motion. Second, even if he was able to satisfy the Davenport
requirements, Petitioner’s claim fails on the merits and must be denied. Because it is
clear that Petitioner is not entitled to relief, Petitioner’s Petition for habeas relief
must be denied.
A. LEGAL STANDARDS
The Court, in its discretion, applies the Rules Governing Section 2254 Cases
in the United States District Courts to this case. See Rules Governing Section 2254
Cases in the United States District Courts, R 1(b).2 This includes Rule 4, which
requires that the Court “promptly examine” the Petition and dismiss it if it
“plainly appears . . . that the petitioner is not entitled to relief.” Pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
See also Poe v. United States, 468 F.3d 473, 477 n.6 (7th Cir. 2006); Hudson v.
Helman, 948 F. Supp. 810, 811 (C.D. Ill. 1996) (holding Rule 4 takes precedence over
the deadlines in 28 U.S.C. § 2243 and gives court discretion to set deadlines).
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Courts, the Court has examined the Petition and concludes that Petitioner is not
entitled to relief.
Petitioner repeatedly accuses the Court of inappropriately dismissing his
Petition without requiring the Government to respond. However, Rule 4 requires the
Court to promptly examine habeas petitions and to dismiss them if it plainly appears
that the petitioner is not entitled to relief. Therefore, it was more than appropriate
for the Court to promptly examine Petitioner’s petition and to dismiss it because it
was plainly clear that Petitioner was not entitled to relief. The Court cautions
Petitioner against making broad accusations against the court simply because he
disagrees with how his case was handled.
Federal prisoners like Petitioner who wish to collaterally attack their
convictions or sentences ordinarily must do so under 28 U.S.C. § 2255. Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012). They may petition under 28 U.S.C. § 2241 only in
the rare circumstance in which the remedy provided under § 2255 “is inadequate or
ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e) (which is often
referred to as “the Savings Clause”). The mere fact that Petitioner’s claim would be a
second or successive § 2255 motion does not render § 2255 inadequate or ineffective.
See In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998).
In Davenport, the United States Court of Appeals for the Seventh Circuit
articulated three conditions that a petitioner must meet in order to invoke the
Savings Clause on the basis of a change in law. Id. at 610-612. These conditions were
recently summarized in Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013), another case
in which a petitioner brought a § 2241 petition based upon a Supreme Court decision
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interpreting the residual clause of the ACCA. First, a prisoner “must show that he
relies on a statutory-interpretation case rather than a constitutional case;” second,
he “must show that he relies on a retroactive decision that he could not have invoked
in his first § 2255 motion;” and third, “[the] sentence enhancement [must] have been
a grave enough error to be deemed a miscarriage of justice corrigible therefore in a
habeas corpus proceeding.” Id. at 586 (citations omitted) (internal quotation marks
omitted).
B. DISCUSSION
Petitioner’s claim must be denied for two reasons. First, Petitioner fails to
satisfy the Davenport requirements in order to be allowed to bring a § 2241 petition
instead of a § 2255 motion; therefore, his petition must be denied. Second, even if he
was able to satisfy the Davenport requirements, Petitioner’s claims fail on the merits
and must be denied.
i. DAVENPORT REQUIREMENTS AND MATHIS’S RETROACTIVITY
Petitioner has failed to satisfy the Davenport requirements to bring a § 2241
petition. Petitioner’s argument relies on Mathis, 136 S. Ct. at 2243 and Descamps v.
United States, 133 S. Ct. 2276 (2013). Both Mathis and Descamps are statutory
interpretation cases, and are binding on this Court, but neither of which have been
deemed retroactive on collateral review. Holt v. United States, 3 843 F.3d 720, 722
Petitioner asserts that in Holt the Government conceded that Mathis applies
retroactively to § 2241 petitions and that the Seventh Circuit accepted that
concession. (Doc. 4 at 2). Petitioner’s interpretation of Holt is incorrect. The
Government “conced[ed] that Holt would prevail in an initial collateral attack.” 843
F.3d at 722. An “initial collateral attack” is a first § 2255 motion, not a § 2241 petition.
Furthermore, the Court refused to consider the question of whether Holt was entitled
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(7th Cir. 2016) (“Mathis has not been declared retroactive by the Supreme Court—
nor is it a new rule of constitutional law.”); Groves v. United States, 755 F.3d 588, 593
(7th Cir. 2014) (“the Supreme Court has not made Descamps retroactive on collateral
review.”). Petitioner argues that the only cases that need to be made retroactive by
the Supreme Court are constitutional interpretation cases, for purposes of second or
successive petitions under § 2255. However, Petitioner is wrong. In order to meet the
Davenport requirements, Petitioner must show that he relies on a retroactive decision
that he could not bring on his first § 2255 motion. Neither the United States Supreme
Court nor the United States Court of Appeals for the Seventh Circuit has held that
Mathis is retroactive for purposes of a § 2241 petition. Therefore, in order for
Petitioner to proceed, Petitioner must be relying on a new rule of law that can be
applied retroactively.
Petitioner asserts that Mathis can be applied retroactively. This Court
disagrees and does not believe Mathis is retroactive. First of all, retroactivity
analyses deal with new rules. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987). “[A]
case announces a new rule when it breaks new ground or imposes a new obligation
on the States or the Federal Government. To put it differently, a case announces a
new rule if the result was not dictated by precedent existing at the time the
defendant’s conviction became final.” Teague v. Lane, 489 U.S. 288, 301 (1989)
(citations omitted) (emphasis added). It is doubtful that Mathis even announced a
to relief under § 2241. Id. at 724 (“Whether he might be entitled to relief under 28
U.S.C. § 2241 . . . is a question we need not consider.”) (emphasis added).
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rule inasmuch as it only clarified that an exception to an already established rule
could not be applied.
The issue before the court in Mathis was whether the Armed Career Criminal
Act (the “ACCA”), codified at 18 U.S.C. § 924(e), had as an exception to the
longstanding general rule that a prior crime qualifies as an ACCA predicate if, and
only if, its elements are the same as or narrower than those of the generic offense,
even when a defendant is convicted under a statute that lists multiple, alternative
means of satisfying one (or more) of its elements. 136 S. Ct. at 2247-48. The Court
held that such an exception could not exist under the Court’s established precedent.
Id.
The Mathis opinion is replete with references to how its outcome was dictated
by the Supreme Court’s existing precedent, and thus, not new. For example, the
Mathis court wrote: “ACCA, as we have always understood it, cares not a whit about
[the particular facts underlying a conviction].” 136 S. Ct. at 2248 (emphasis added)
citing Taylor v. United States, 495 U.S. 575, at 599–602 (1990); see also 136 S. Ct. at
2249 – 2250. (“Under our precedents, that undisputed disparity resolves this case.
We have often held, and in no uncertain terms, that a state crime cannot qualify as
an ACCA predicate if its elements are broader than those of a listed generic offense.
See, e.g., Taylor, 495 U.S., at 602, 110 S. Ct. 2143. How a given defendant actually
perpetrated the crime—what we have referred to as the “underlying brute facts or
means” of commission, Richardson, 526 U.S., at 817, 119 S. Ct. 1707—makes no
difference; even if his conduct fits within the generic offense, the mismatch of
elements saves the defendant from an ACCA sentence. Those longstanding
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principles, and the reasoning that underlies them, apply regardless of whether a
statute omits or instead specifies alternative possible means of commission.”); at 2253
(“And indeed, our cases involving the modified categorical approach have already
made exactly that point.”); at 2257 (“Our precedents make this a straightforward
case. For more than 25 years, we have repeatedly made clear that application of
ACCA involves, and involves only, comparing elements.”). So Mathis did not
announce a new rule, rather it only clarified when the longstanding rule of Taylor
applied. See United States v. Taylor, No. 16-6223, 2016 WL 7093905, at *4 (10th Cir.
Dec. 6, 2016) (holding similarly and collecting cases). Therefore, the Court did not
apply a new rule of law, but rather clarified how prior precedent should be applied.
Because there is no rule of law, Mathis is not retroactive.
Since Petitioner is relying upon cases of statutory interpretation, the Court
finds he has satisfied the first requirement of Davenport. However, he clearly cannot
satisfy the second requirement—that he show that he relies on a retroactive decision
that he could not have invoked in his first § 2255 motion—because neither Mathis
nor Descamps has been held to apply retroactively on collateral review. For these
reasons, § 2241 relief is not available to Petitioner and this petition must be denied
pursuant to 28 U.S.C. §§ 2255(e), 2244(a). McFarland v. Scott, 512 U.S. 849, 856
(1994) (federal courts are empowered to dismiss summarily any habeas petition that
appears legally insufficient on its face).
ii. ILLINOIS ROBBERY IS A VIOLENT FELONY
Furthermore, even if Petitioner were able to meet the Davenport requirements,
his Petition fails on the merits. The United States Court of Appeals for the Seventh
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Circuit has unequivocally held that “a violation of the Illinois robbery statute per se
constitutes a violent felony for purposes of [the force clause] . . . .” United States v.
Dickerson, 901 F. 2d 579, 584 (7th Cir. 1990). This case is binding on this Court and
makes it clear on its face that Petitioner’s Petition must be denied. This alone was
sufficient to deny the Petition.
Petitioner argues that his Illinois robbery statute cannot satisfy the “force
clause” because Curtis Johnson v. United States, 599 U.S. 133, 135-37 (2010), and
Mathis, inherently overturned Dickerson. However, they did no such thing. In Curtis
Johnson, the United States Supreme Court addressed whether the Florida crime of
battery, which could be proven by showing that a defendant has “actually and
intentionally touched the victim,” had an element of physical force, thereby
constituting a “violent felony” under the Armed Career Criminal Act. Curtis Johnson,
599 U.S. at 135-37. The Court found that “actually and intentionally touching”
another person was not sufficient physical force. Id.
However, Illinois’s robbery statute does not falter from any similar flaw. Since
1991, Illinois’s robbery statute has been defined as:
“A person commits robbery when he takes property from the person or
presence of another by the use of force or by threatening the imminent
use of force.”
People v. Touhy, 31 Ill. 2d 236, 239 (1964) (emphasis added) (citing Ill. Rev. Stat.
1961, chap. 38, pars. 18-1, 18-2).4 The Seventh Circuit has explained Curtis Johnson,
Petitioner does not allege when his Illinois conviction for robbery occurred; however,
Petitioner was born in 1963. See United States v. Robinson, 164 F.3d 1068, 1070 (7th
Cir. 1999) (stating that Petitioner would be eligible for release in 2083, when he was
120 years old). However, because the Illinois robbery statute remains substantially
unchanged since 1961, the Court finds that the year of Petitioner’s conviction
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stating “Curtis Johnson teaches that the violent force that must be feared for robbery
by intimidation to be a crime of violence has a low threshold – a fear of a slap in the
face is enough.” United States v. Armour, 840 F.3d 904, 909 (7th Cir. 2016). Illinois’s
robbery statute requires either the use of force or the threatening of imminent use of
force.5 Even analyzing the lesser of the two prongs—threatening the imminent use of
force, the Court cannot conceive of a kind of force threatened by a robber that would
be strictly less than a “slap in the face.” Therefore, under Curtis Johnson, an Illinois
conviction for robbery would constitute a crime of violence. See, e.g., Dorsey v. United
States, No. 16-C-6592, 2017 U.S. Dist. LEXIS 52805, at *11-12 (N.D. Ill. Apr. 6, 2017)
(finding the same).
Furthermore, the Seventh Circuit has upheld the validity of Dickerson, even
after Curtis Johnson. In 2016, the Seventh Circuit stated, while affirming a direct
appeal that “[the appellant] has been convicted of robbery, in violation of Illinois law,
irrelevant. Compare Ill. Rev. Stat. 1961, chap. 38, pars. 18-1 with 720 Ill. Comp. Stat.
§ 5/18-1(a) (2016) (“A person commits robbery when he or she knowingly takes
property, except a motor vehicle covered by Section 18-3 or 18-4, from the person or
presence of another by the use of force or by threatening the imminent use of force.”).
Petitioner repeatedly argues that one can commit Illinois robbery without the use
of force. He offers two hypotheticals: one, where a purse is stolen from a woman and
two, where money is take from a cash register while the waitress is away. Petitioner
asserts both hypotheticals without legal support and then argues that the Court must
take his hypothetical “robberies” as true unless disputed by the respondent. However,
Petitioner’s hypotheticals are legal conclusions, not factual allegations. The Court is
not required to presume that any of Petitioner’s legal assertions are true.
Furthermore, both of Petitioner’s hypotheticals are those of theft; “the distinction
between a robbery and a theft can be subtle—theft is a taking without the
requirement of force.” United States v. Shamah, 624 F.3d 449 (7th Cir. 2010) (citing
720 Ill. Comp. Stat. § 5/16-1). “To sustain a charge of robbery, the robber must use
force or the threat of forces as the means to take the property from the person or
presence of the victim.” Id. (citing People v. Blake, 144 Ill. 2d 314 (1991)).
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and we have held that convictions under that statute are crimes of violence under the
elements clauses of the Guidelines and similarly worded statutes.” United States v.
Smith, 669 F. App’x 314, 315 (7th Cir. 2016) (citing Dickerson, 901 F.2d at 584).
The Court is assured that its interpretation of Curtis Johnson’s application to
Illinois law is correct because of the Seventh Circuit’s holding in United States v.
Duncan. 833 F.3d 751, 755 (7th Cir. 2016). In Duncan, the Seventh Circuit addressed
whether Indiana’s robbery statute was still a crime of violence under the elements
clause. Id. Indiana law criminalized robbery as “a person who knowingly or
intentionally takes property from another person or from the presence of another
person: (1) by using or threatening the use of force on any person; or (2) by putting
any person in fear; commits robbery, a Level 5 felony.” Id. at 754 (citing Ind. Code §
35-42-5-1). The Seventh Circuit held: “The relevant holding of Lewis—that any
conviction under Indiana Code § 35-42-5-1 qualifies as a crime of violence under the
elements clause and is thus a violent felony—remains good law.” Id. at 755 (citing
United States v. Lewis, 405 F.3d 511 (7th Cir. 2005) (emphasis added)). Indiana’s
robbery statute is broader than Illinois’s statute, because it includes “putting any
person in fear.” Therefore, if any conviction of Indiana’s robbery statute remains a
crime of violence under the elements clause, than any conviction of Illinois’s robbery
statute must likewise be a crime of violence under the elements clause.
Furthermore, the other district courts within this circuit have likewise held
that the Illinois robbery statute is a crime of violence, even after Curtis Johnson. See
Dorsey, 2017 U.S. Dist. LEXIS 52805, at *12 (“[R]obbery under Illinois law must
qualify as a violent felony under the elements clause of the ACCA as well.”); Wolf v.
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United States, No. 16-cv-527-NJR, 2017 U.S. Dist. LEXIS 33064, at *5 (S.D. Ill. Mar.
8, 2017) (“Additionally, the Seventh Circuit has repeatedly held that robbery as
defined by Illinois law is a crime of violence”); Van Sach v. United States, No. 16-C5530, 2017 U.S. Dist. LEXIS 36591, at *13-15 (N.D. Ill. Mar. 14, 2017) (“But in any
event, Dickerson remains binding precedent in this Circuit, and this Court must
follow it unless it is overturned by the Seventh Circuit. This seems unlikely given
that the Seventh Circuit and district judges in this Circuit have continued to rely on
Dickerson even after the Curtis Johnson decision.”); United States v. Jones, No. 16-C6396, 2016 U.S. Dist. LEXIS 164876, at *6 (N.D. Ill. Nov. 29, 2016) (“What Dickerson
then said, and what continues to control today, is that the Illinois statute in its own
terms includes the elements of either ‘use of force . . . threatening the imminent use
of force.’”); Adams v. United States, No. 16-1096, 2016 U.S. Dist. LEXIS 113699, at *5
(C.D. Ill. Aug. 25, 2016) (“Accordingly, the elements of both robbery and armed
robbery clearly include the use, attempted use, or threatened use of physical force
against the person of another and would continue to qualify as a ‘violent felony’ or
‘crime of violence’ under the elements clause . . .”).
Petitioner also argues that his Sentencing Judge “did not say under which
clause it was using for enhancement purposes. Nor did the PSI or the Government’s
sentencing memorandum. It was the Government’s burden to distinguish what clause
was being utilized.” (Doc. 4 at 5). However, not only does Petitioner offer no legal
support for that assertion; that assertion has been rejected by several courts within
this circuit. See Holt, 843 F.3d at 722-23 (suggesting that where a § 2255 petitioner’s
prior offenses could be categorized as a violent felony under either of the two
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remaining clauses, he would not be entitled to habeas relief); Van Sach, 2017 U.S.
Dist. LEXIS 36591, at *4 n.4 (rejecting the argument that the Court is precluded from
determining whether an offense satisfy any of the other clauses); Rogers v. United
States, 179 F. Supp. 3d 835, 841-42 (C.D. Ill. 2016) (rejecting a residual clause
challenge because the record showed that the petitioner’s predicate crime was a
violent felony under the elements clause); Dorsey, 2017 U.S. Dist. LEXIS 52805, at
*12-13 (rejecting Petitioner’s argument that the government bared the burden to
prove which clause he was convicted under because it was unsupported by any legal
authority); Clark v. United States, No. 16-2296, 2017 U.S. App. LEXIS 2994, at *5
(7th Cir. Feb. 21, 2017) (denying a petitioner’s request to add a residual claim because
the Court found his crimes to be crimes of violence under the elements clause).
IV. CONCLUSION
Because Petitioner’s predicate conviction for Illinois robbery is a crime of
violence under the force clause under binding precedent, there is no relief for the
Court to grant and Petitioner’s Petition must be denied.
IT IS THEREFORE ORDERED that Petitioner’s Motion to Alter or Amend
Judgment (Doc. 4) is GRANTED. Petitioner’s Motion for Assignment of a New Judge
(Doc. 4) is DENIED. The Court’s Order dated May 1, 2017 (Doc 2) and the
accompanying Judgment (Doc. 3) are VACATED. Petitioner’s case is REOPENED.
Upon reconsideration, the Court finds Petitioner is not entitled to relief
pursuant to 28 U.S.C. § 2241. Thus, Petitioner’s Petition (Doc. 1) is DENIED
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts.
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Entered this __1st___ day of June, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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