Jordan v. United States of America

Filing 21

OPINION: Petitioner Anthony Jordan's Amended Motion to Vacate Sentence Under 28 U.S.C. § 2255 (d/e 5 ) is DENIED. Petitioner's Motion to Modify and/or Correct Sentence (d/e 1 ) is DENIED as MOOT. The Government's Motion to Revoke Petitioner's Release (d/e 19 ) is GRANTED. The Court declines to issue a certificate of appealability. This case is CLOSED. Entered by Judge Sue E. Myerscough on 9/12/2017. (ME, ilcd)

E-FILED

Wednesday, 13 September, 2017 04:14:20 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ANTHONY JORDAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 15-cv-02294

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:

This cause is before the Court on Petitioner Anthony Jordan’s

Amended Motion to Vacate Sentence Under 28 U.S.C. § 2255 (d/e
5). Because Petitioner is not entitled to relief, the amended § 2255
motion is DENIED. Accordingly, the Government’s Motion to
Revoke Petitioner’s Release (d/e 19) is GRANTED.
I. BACKGROUND
A.

Procedural Background Pertaining to Petitioner’s
Underlying Criminal Case.
In July 2006, Petitioner, pursuant to a written plea agreement,

pled guilty to distributing five or more grams of cocaine base (crack)
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). See United

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States v. Jordan, Case No. 04-cr-20008 (hereinafter, Crim.), Plea
Agreement (d/e 7). As part of the plea agreement, Petitioner waived
his right to appeal and collaterally attack his conviction and
sentence. Id.; see also Resp. App’x 1 at 25, 27-29 (d/e 6-1).
Prior to Petitioner’s sentencing, the U.S. Probation Office
prepared a Presentence Investigation Report (PSR), which stated
that Petitioner qualified as a career offender under United States
Sentencing Guideline § 4B1.1 due to three prior convictions for
crimes of violence: aggravated battery, Champaign County Circuit
Court, Case No. 95-CF-452; mob action, Champaign County Circuit
Court, Case No. 98-CF-1767; and domestic battery, Champaign
County Circuit Court, Case No. 01-CF-1024. Crim., Presentence
Investigation Report, ¶ 20 (d/e 66). A defendant is a career
offender if he is at least 18 years old at the time he committed the
instant offense, the instant offense is a felony that is either a crime
of violence or a controlled substance offense, and the defendant has
at least two prior felony convictions of either a crime of violence or a
controlled substance offense. U.S.S.G. § 4B1.1 (2005). Former
United States District Judge Michael P. McCuskey subsequently

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adopted the U.S. Probation Office’s findings at sentencing. See
Crim., d/e 69.
Having been designated a career offender, Petitioner’s offense
level increased from 28 to 34, and his sentencing guideline range
rose from 140 to 175 months to a range of 262 to 327 months.
Crim., PSR, ¶ 56. The statutory minimum sentence was five years;
the statutory maximum, forty. Id. ¶ 55 (citing 21 U.S.C. §
841(b)(1)(B)). In July 2006, Judge McCuskey sentenced Petitioner
to 262 months’ imprisonment. Crim., Judgment (d/e 68).
Petitioner filed an appeal, see Crim., d/e 70, which was later
dismissed by the United States Court of Appeals for the Seventh
Circuit. Crim., Mandate (d/e 80). In 2008, Petitioner filed a § 2255
petition, which was denied that same year. See Jordan v. United
States, Case No. 08-cv-02048, Motion (d/e 1); Judgment (d/e 7).
B.

Background Pertaining to Petitioner’s § 2255 Motion.
On December 8, 2015, Petitioner filed a § 2255 motion based

on Johnson v. United States, 135 S. Ct. 2551 (2015). See d/e 1.
The Supreme Court there held that the residual clause of the Armed
Career Criminal Act is unconstitutionally vague. Johnson, 135 S.
Ct. at 2563; 18 U.S.C. § 924(e)(2)(B)(ii) (the ACCA “residual clause”)

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(defining the term “violent felony” to include “conduct that presents
a serious potential risk of physical injury to another”). The Seventh
Circuit authorized this Court to consider Petitioner’s claim, an act
necessary for the filing of a second § 2255 motion. See d/e 2; 28
U.S.C. § 2255(h). This Court then appointed the Federal Public
Defender’s Office to represent Petitioner, which then filed
Petitioner’s amended § 2255 motion.
In his amended motion, Petitioner argues both that the
residual clause of the career offender guideline, identical in
language to the residual clause of the Armed Career Criminal Act, is
void for vagueness under Johnson and that he has only one prior
conviction for a crime of violence. See U.S.S.G. § 4B1.2(a)(2) (2005)
(defining a crime of violence as an offense that “involves conduct
that presents a serious potential risk of physical injury to another”).
Under Johnson, mob action cannot qualify as a crime of violence,
as it can qualify only under the now-invalidated residual clause.
See U.S. v. Cole, 298 F.3d 659, 661 (7th Cir. 2002); Am. Mot. at 2
(d/e 5); U.S.S.G. § 4B1.2(a)(2) (2005). Similarly, a domestic battery
conviction can no longer qualify as a crime of violence. See United
States v. Evans, 576 F.3d 766, 767-69 (7th Cir. 2009); Am. Mot. at

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2 (d/e 5). This calculus leaves Petitioner with only one crime of
violence conviction—his conviction for aggravated battery.
Therefore, Petitioner asserts, he should not have been sentenced as
a career offender.
In the Government’s original response to Petitioner’s amended
motion, the Government did not contest Petitioner’s claim that
Johnson applies to the guidelines. Rather, the Government
asserted that Johnson is not retroactively applicable to guidelines
cases on collateral review and further argued that Petitioner waived
his right to collaterally attack his sentence. Resp. at 6 (d/e 6). The
Court stayed Petitioner’s case pending appellate resolution of the
effect of Johnson on the identically worded residual clause in the
career offender guideline.
In August 2016, the Seventh Circuit held that Johnson did
apply to the guidelines. United States v. Hurlburt, 835 F.3d 715,
725 (7th Cir. 2016) (applying Johnson and holding that the residual
clause in § 4B1.2(a)(2) was unconstitutionally vague). In the wake
of Hurlburt, the Court granted Petitioner’s motion to be released on
bond (d/e 9) and ordered Petitioner’s release pending resolution of
his § 2255 motion. See Opinion (d/e 15). But on March 6, 2017,

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the United States Supreme Court decided Beckles v. United States,
holding that the “advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause” and that the residual
clause in § 4B1.2(a)(2) is not void for vagueness. 137 S. Ct. 886,
890 (2017) (also abrogating Hurlburt). Shortly thereafter, the
Government filed a notice in this case regarding supplemental
authority, asserting that Beckles forecloses Petitioner’s Johnsonbased challenge to his career offender designation. The
Government also argues for the revocation of Petitioner’s bond,
stating that Petitioner violated his bond conditions, see Notice (d/e
19) (noting that “approximately one month into his release,
[Petitioner] violated his conditions of location monitoring” and
currently faces state felony charges for aggravated battery of a
peace officer and aggravated battery of a nurse). The Government
contends, as the Government did in its original response, that
Petitioner previously waived his right to collaterally attack his
sentence.1 Id. at 8 n.3.

1 In a footnote, see Notice at 8 n.3 (d/e 19), the Government also argues, for
the first time, that Petitioner’s claim is (1) procedurally defaulted and (2) barred
under 28 U.S.C. § 2244(b)(1), citing Bousley v. United States, 523 U.S. 614
(1998); White v. United States, 371 F.3d 900 (7th Cir. 2004); and Taylor v.
Gilkey, 314 F.3d 832 (7th Cir. 2002). As Beckles clearly forecloses Petitioner’s

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II. ANALYSIS
If the waiver in Petitioner’s plea agreement bars Petitioner from
collaterally attacking his sentence, as the Government asserts,
Petitioner’s claim cannot proceed. The Seventh Circuit has
“consistently rejected arguments that an appeal waiver is invalid
because the defendant did not anticipate subsequent legal
developments.” United States v. McGraw, 571 F.3d 624, 631 (7th
Cir. 2009). But contrary to the Government’s position, this
tradition is not an absolute bar to Petitioner’s § 2255 motion.
The Court notes, as it has before, that the collateral attack
waiver in Petitioner’s plea agreement does not contain language that
allows for appeals based on subsequent changes in the landscape of
sentencing law. See Opinion (d/e 15). But this omission is not a
complete bar to Petitioner. The Seventh Circuit has upheld appeal
waivers entered into prior to the Supreme Court’s ruling in United
States v. Booker, 543 U.S. 220 (2005). See United States v.
Lockwood, 416 F.3d 604, 608 (7th Cir. 2005); United States v.
Bownes, 405 F.3d 634, 636-37 (7th Cir. 2005). However, these

ability to obtain habeas relief based on Johnson, the Court will not discuss the
merits of the Government’s additional arguments.

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cases do not compel a holding that Petitioner’s collateral attack
waiver is applicable to a challenge based on Johnson. Booker deals
with a criminal defendant’s protection “against conviction except
upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged” and the protection of
his “right to demand that a jury find him guilty of all the elements
of the crime with which he is charged.” Booker, 543 U.S. at 230.
Johnson, meanwhile, concerns rights bestowed on criminal
defendants by the Due Process Clause. Johnson, 135 S. Ct. at
2558 (noting that the ACCA residual clause “produces more
unpredictability and arbitrariness than the Due Process Clause
tolerates”).
This distinction is significant. The Seventh Circuit has noted
that “there are at least some due process exceptions to a waiver of
appellate review.” United States v. Adkins, 743 F.3d 176, 192 (7th
Cir. 2014) (allowing a criminal defendant who had waived his
appellate rights in a plea agreement to challenge the vagueness of a
term of supervised release). Waivers, the court held, must give way
to ensure “fundamental fairness to the particular defendant and the
fundamental legitimacy of the judicial process generally.” Id. Just

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as these principles allow for challenges to vague conditions of
supervised release, so too should they allow for challenges to vague
sentencing guidelines that have the ability to dramatically increase
a defendant’s imprisonment guideline range. The Due Process
Clause demands as much. Therefore, the collateral attack waiver in
Petitioner’s plea agreement does not bar Petitioner’s § 2255 motion.
As to the timeliness of Petitioner’s motion, a petitioner is
entitled to relief under § 2255 if he establishes that his sentence
violates the Constitution or laws of the United States. 28 U.S.C. §
2255(a). A § 2255 motion may be filed within one year of “the date
on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral
review.” 28 U.S.C. § 2255(f)(3). As Johnson, decided on June 26,
2015, announced a new substantive rule, the decision has
retroactive effect, see Welch v. United States, 136 S. Ct. 1257, 1265
(2016). Petitioner’s § 2255 motion, filed on December 8, 2015, is
timely.
Nonetheless, Petitioner is not entitled to relief. Johnson
invalidated the residual clause of the Armed Career Criminal Act,

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holding that the act “violates the Constitution’s guarantee of due
process.” 135 S. Ct. at 2563. The decision was an application of
the “void for vagueness” rule, a rule that stems from the Due
Process Clause of the Constitution. Due process, a central tenet of
the American legal system, prohibits the Government from “taking
away someone’s life, liberty, or property under a criminal law so
vague that it fails to give ordinary people fair notice of the conduct
it punishes, or so standardless that it invites arbitrary
enforcement.” Id. at 2556 (citations omitted). Adjudication of the
ACCA’s residual clause was arbitrary, to say the least: “pervasive
disagreement” created “numerous splits among the lower federal
courts.” Id. at 2560. Owing to the numerous uncertainties the
ACCA residual clause spawned, the “shapeless” clause was simply
incompatible with due process. Id.
The Johnson decision nullified the impermissibly vague
residual clause of the ACCA—a clause which fixed sentencing
ranges. 135 S. Ct. at 2557. Beckles, meanwhile, concerned
advisory guidelines that “merely guide the exercise of a court’s
discretion in choosing an appropriate sentence within the statutory
range.” Beckles, 137 S. Ct. at 892 (emphasis added). Beckles held

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that the “advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause” and that the residual
clause in § 4B1.2(a)(2) is not void for vagueness. Id. at 890. After
all, the Supreme Court reasoned, if the system of purely
discretionary sentencing that predated the sentencing guidelines
was not unconstitutionally vague, neither could be “the present
system of guided discretion.” Id. at 894.
As the guidelines are advisory rather than mandatory, the
residual clause of the career offender guideline survives Johnson.
Petitioner is therefore not entitled to relief on his amended § 2255
motion.
Petitioner argues that the classification of his domestic battery
conviction as a crime of violence is inaccurate. See United States v.
Evans, 576 F.3d at 767-769. However, Petitioner’s argument is not
cognizable in a § 2255 petition. Generally, deviations from the
sentencing guidelines are not cognizable under 28 U.S.C. § 2255.
See Welch v. United States, 604 F.3d 408, 412 (7th Cir. 2010).
After the guidelines were made advisory, the Seventh Circuit held in
Hawkins v. United States that an erroneous determination that a
petitioner is a career offender is not a cognizable error under §

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2255. Hawkins, 706 F.3d 820, 824-825 (7th Cir. 2013), opinion
supplemented on denial of reh’g, 724 F.3d 915 (7th Cir. 2013).
Weighing the judicial system’s interest in finality against the
injustice of a possibly mistaken sentence, the court wrote that a
“sentence that is well below the ceiling imposed by Congress . . .
should [not] . . . be considered a ‘miscarriage of justice’ that can be
collaterally attacked, just because the judge committed a mistake
en route to imposing it.” Id. at 824-825; see also United States v.
Coleman, 763 F.3d 706, 708-10 (7th Cir. 2014) (reversing district
court order vacating sentence where, although the sexual assault
conviction could no longer form the basis for career offender status,
the error was not cognizable in the § 2255 petition).
Here, as in Hawkins, the Court sentenced Petitioner under the
advisory guidelines to a sentence well below the statutory maximum
sentence of forty years. The purported error in designating
Petitioner a career offender based on a conviction for domestic
battery is simply not cognizable in a § 2255 petition. Besides, even
if Evans rendered Petitioner’s domestic battery conviction invalid,
Petitioner would still have on his record two convictions for crimes

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of violence, making him a career offender. Petitioner is
consequently not entitled to relief under 28 U.S.C. § 2255.
III. CERTIFICATE OF APPEALABILITY
If Petitioner seeks to appeal this decision, he must first obtain
a certificate of appealability. See 28 U.S.C. § 2253(c) (providing that
an appeal may not be taken to the court of appeals from the final
order in a § 2255 proceeding unless a circuit justice or judge issues
a certificate of appealability). A certificate of appealability may
issue only if Petitioner has made a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Here,
Petitioner has not made a substantial showing of the denial of a
constitutional right. The Court declines to issue a certificate of
appealability.
IV. CONCLUSION
For the reasons stated, Petitioner Anthony Jordan’s Amended
Motion to Vacate Sentence Under 28 U.S.C. § 2255 (d/e 5) is
DENIED. Petitioner’s Motion to Modify and/or Correct Sentence
(d/e 1) is DENIED as MOOT. The Government’s Motion to Revoke
Petitioner’s Release (d/e 19) is GRANTED. The Court declines to
issue a certificate of appealability. This case is CLOSED.

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ENTER: September 12, 2017
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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