Dalton v. United States of America
Filing
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OPINION: Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1 ) and amended motion (d/e 3 )are DENIED. The Court denies a certificate of appealability. This case is CLOSED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 04/25/2017. (SKN, ilcd)
E-FILED
Tuesday, 25 April, 2017 04:09:25 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SHANCE DALTON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 16-2161
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Petitioner Shance Dalton’s
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (d/e 1) and an amended
motion (d/e 3) (collectively referred to as the § 2255 Motion).
Because Petitioner is not entitled to relief, the § 2255 Motion is
DENIED.
I. BACKGROUND
A.
Procedural Background Pertaining to the Underlying
Criminal Case
In late 2006, Petitioner pled guilty to distributing five grams or
more of cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1)
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and § 841(b)(1)(B) pursuant to a plea agreement. See United States
v. Dalton, 06-20019 (hereinafter, Crim.). As part of the plea
agreement, Petitioner waived his right to appeal and collaterally
attack his conviction and sentence. Crim., Plea Agreement (d/e 14).
The Probation Office prepared a Presentence Investigation
Report (PSR). Crim., PSR (d/e 22). The PSR reflected that
Petitioner qualified as a career offender under United States
Sentencing Guidelines § 4B1.1 based on two prior convictions for a
crime of violence (aggravated battery, Champaign County Circuit
Court, Case Nos. 97-CF-445 and 97-CF-1115) and one prior
conviction for a controlled substance offense (Champaign County
Circuit Court, Case No. 99-CF-31). Id. ¶ 25; see also U.S.S.G.
§ 4B1.1 (2006) (providing that a defendant is a career offender if he
is at least 18 years old when 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). It is unclear whether the Court found that the
convictions qualified under the elements clause of the career
offender guideline or the residual clause. Compare U.S.S.G.
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§ 4B1.2(a)(1) (2006) (defining a crime of violence to include an
offense that “has as an element the use, attempted use, or
threatened use of physical force against the person of another”) with
§4B1.2(a)(2) (defining a crime of violence to include an offense that
“otherwise involves conduct that presents a serious potential risk of
physical injury to another”).
In light of the career offender designation, Petitioner’s advisory
sentencing guideline range was 262 to 327 months. Crim., PSR
¶ 70. The statutory minimum sentence was 120 months and the
maximum term was life. Id. ¶ 69 (citing 21 U.S.C. § 841(b)(1)(B)). In
April 2007, former United States District Judge Michael P.
McCuskey sentenced Petitioner to 262 months’ imprisonment to
run concurrently with Petitioner’s state conviction in Champaign
County Case No. 07-CF-363. Crim., Judgment (d/e 25).
In February 2008, the Government filed a Motion for Hearing
to Determine Whether Defendant Violated Terms of Plea Agreement.
Crim., Mot. (d/e 27). In May 2008, following a hearing, Judge
McCuskey found that Petitioner had violated the terms of the plea
agreement by failing to provide complete and truthful information
regarding other criminal activity. Crim., May 29, 2008 Minute
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Entry; May 29, 2008 Tr. at 19 (d/e 47). The Court voided the plea
agreement, stated that Petitioner could not withdraw his guilty plea,
and set the matter for resentencing. Id. On July 31, 2008, Judge
McCuskey vacated the original judgment and resentenced Petitioner
to 441 months’ imprisonment, to run concurrently with the state
conviction in Champaign County Case No. 07-CF-363. Crim., Text
Order of July 31, 2008; Judgment (d/e 40) (judgment dated August
1, 2008). Petitioner appealed. In November 2009, the Seventh
Circuit entered an order granting the Government’s motion to
vacate the district court’s decision, stating:
This case is remanded to the district court with
instructions to vacate the order entered on July 31,
2008, vacating [Petitioner’s] original sentence, and the
judgment entered on August 1, 2008, imposing the new
sentence. The district court lacked jurisdiction to alter
[Petitioner’s] sentence. See United States v. Lawrence,
535 F.3d 631, 637 (7th Cir. 2008).
Crim., Mandate (d/e 56). On remand, Judge McCuskey vacated the
order entered July 31, 2008, which had vacated Petitioner’s original
sentence, and vacated the judgment entered August 1, 2008, which
had imposed a new sentence. Crim. Text Order of December 8,
2009. The Court did not appoint counsel to represent Petitioner
and did not hold a new sentencing hearing. On January 29, 2010,
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the Court entered an Amended Judgment, noting that the judgment
dated August 1, 2008 was vacated pursuant to the Seventh
Circuit’s mandate and that the original judgment dated April 24,
2007 was reimposed. Crim., Am. Judgment (d/e 60).
B.
Background Pertaining to Petitioner’s § 2255 Motion
In June 2016, Petitioner filed a Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody based on Johnson v. United States, 135 S. Ct.
2551 (2015) (holding that the residual clause of the Armed Career
Criminal Act is unconstitutionally vague). See d/e 1 (filed June 14,
2016), d/e 3 (filed June 21, 2016). Petitioner argued that his
Illinois aggravated battery convictions no longer qualified as crimes
of violence for purposes of the career offender guideline. The Court
appointed counsel to represent Petitioner. The Government does
not dispute that Petitioner’s aggravated battery convictions, which
were under the “insulting and provoking” prong of the Illinois
statute, no longer qualify as crimes of violence.1 Resp. at 5 (d/e 12);
The Seventh Circuit has held that the Illinois aggravated battery offense of
making insulting or provoking contact with a peace officer does not qualify as a
violent felony under the residual clause of the Armed Career Criminal Act.
United States v. Hampton, 675 F.3d 720, 730-31 & n.2 (7th Cir. 2012) (also
noting that the case law interpreting “crime of violence” in the career offender
1
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see also (d/e 17) (copies of the charging documents for Petitioner’s
aggravated battery convicitons).
After Johnson was decided, courts considered whether
Johnson applied to invalidate the identically worded residual clause
in the career offender guideline, § 4B1.2(a)(2). In August 2016, the
Seventh Circuit held that it did. 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) is unconstitutionally vague).
On March 6, 2017, the United States Supreme Court decided
Beckles v. United States, 137 S. Ct. 886 (2017). The Supreme
Court held that the “advisory Guidelines are not subject to
vagueness challenges under the Due Process Clause” and the
residual clause in § 4B1.2(a)(2) is not void for vagueness. Id. at 890
(also abrogating Hurlburt). The Court directed the parties to file
briefs addressing the effect of Beckles on this case.
In his brief, Petitioner argues that Petitioner’s enhancement is
significantly vaguer than the enhancement applied in Beckles;
guideline and “violent felony” in the Armed Career Criminal Act is
interchangeable); see also United States v. Evans, 576 F.3d 766 (7th Cir. 2009)
(holding that making insulting or provoking contact with a pregnant woman
under the Illinois aggravated battery statute was not a crime of violence under
the elements clause or residual clause of the career offender guideline) (decided
while Petitioner’s direct appeal was pending).
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Petitioner was not appointed counsel when he was resentenced in
January 2009 and could not dispute his career offender status on
direct appeal; Beckles does not apply retroactively; Petitioner can
demonstrate prejudice; and Petitioner’s claim was not possible prior
to Johnson. See Brief (d/e 16).
The Government argues that Beckles forecloses Petitioner’s
Johnson-based challenge to his career offender designation. Brief
(d/e 14). The Government further argues that any other claim is
untimely because the § 2255 Motion was filed well beyond one year
from the date of Petitioner’s final conviction and no intervening
precedent allows for a retroactive review of Petitioner’s sentence. Id.
The Government also argued in its initial response to the § 2255
Motion (d/e 12) that a guideline calculation error is not correctable
in a collateral attack.2
II. ANALYSIS
The Government raised additional arguments in the initial response but, in
light of this Court’s disposition of the case, the Court need not address those
other arguments.
2
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A one-year period of limitation applies to § 2255 petitions. 28
U.S.C. § 2255(f). The one-year period begins to run from the latest
of:
(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4). The timeliness of each claim must be
considered independently. Davis v. United States, 817 F.3d 319,
327 (7th Cir. 2016).
In this case, the only two possible dates from which the oneyear period began to run are the dates provided under § 2255(f)(1)
and (f)(3) because Petitioner does not allege any government action
prevented him from making a motion (§ 2255(f)(2)) or that he
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recently discovered, through the exercise of due diligence, facts
supporting the claim (§ 2255(f)(4)).
Petitioner’s conviction became final at least sometime in 2010,
after the Seventh Circuit remanded the case with instructions and
the Court reimposed the original sentence. Petitioner’s § 2255
Motion filed in June 2016 was clearly filed beyond one-year from
the date the conviction was final.
The other possible date for calculating the one-year period is
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). Petitioner asserts that the
§ 2255 Motion is timely because he filed the Motion within one year
of the date Johnson was decided. Petitioner essentially argues that,
if the residual clause is void for vagueness under Johnson, then
Mathis v. United States, 136 S. Ct. 2243 (2016) (holding that a
statute is considered divisible only if it creates multiple offenses by
setting forth alternative elements) applies and demonstrates that
Petitioner’s aggravated battery convictions do not qualify as crimes
of violence under the career offender guideline.
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However, even if the § 2255 Motion is timely pursuant to
Johnson, Petitioner is not entitled to relief under Johnson. Beckles
held that the advisory guidelines are not subject to a vagueness
challenge under the Due Process Clause because the advisory
guidelines “do not fix the permissible range of sentences” but
“merely guide the exercise of a court’s discretion in choosing an
appropriate sentence within the statutory range.” Beckles, 137 S.
Ct. at 892. Because the residual clause is not void for vagueness,
Petitioner is not entitled to relief under Johnson.
In addition, Petitioner has not argued, much less shown, that
Mathis, decided June 23, 2016, restarts the one-year limitation
period. Nonetheless, Mathis did not articulate a new right for
purposes of § 2255(f)(3). See Davis v. United States, No. 2:13-CR46-JRG-8, 2016 WL 7234762, at *2 (E.D. Tenn. Dec. 13, 2016)
(holding that Mathis “involved application of the categorical
approach first adopted by the Supreme Court in Taylor [v. United
States, 495 U.S. 575 (1990)] and refined in the Descamps [v. United
States, 133 S. Ct. 2276 (2013)] decision to a new set of facts” and
did not articulate a new right for purposes of § 2255(f)(3)); Dimott v.
United States, No. 2:06-cr-26-GZA, 2:16-cv-347-GZS, 2016 WL
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6068114, at *3 (D. Maine Oct. 14, 2016) (Mathis does not trigger a
new one-year period for habeas relief under § 2255(f)(3)); but see
Staples v. True, 2017 WL 935895 (S.D. Ill. March 8, 2017)
(involving a motion brought under 28 U.S.C. § 2241 and stating, in
what appears to be dicta, that the petitioner may fail in showing
that relief under § 2255 is inadequate because the petitioner was
still within a year of the date Mathis was decided). Therefore,
Petitioner cannot use Mathis to bring a timely § 2255 motion
challenging whether his Illinois aggravated battery convictions
qualify as crimes of violence under the career offender guideline.
In addition, deviations from the Sentencing Guidelines are
generally not cognizable under 28 U.S.C. § 2255. See Welch v.
United States, 604 F.3d 408, 412 (7th Cir. 2010). A petitioner is
entitled to relief under § 2255 if he establishes that his sentence
violates the Constitution or laws of the United States, the court was
without jurisdiction to impose the sentence, the sentence was in
excess of the maximum authorized by law, or is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a). The Seventh Circuit has
held that the erroneous determination that the petitioner was a
career offender was not a cognizable error under § 2255 after the
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Guidelines were made advisory. Hawkins v. United States, 706
F.3d 820 (7th Cir. 2013), opinion supplemented on denial of reh’g,
724 F.3d 915 (7th Cir. 2013).
In Hawkins, the petitioner qualified as a career offender based
on two prior felony convictions for walkaway escape. Id. at 821.
Three years after the district court resentenced the petitioner under
the advisory Guidelines, the Supreme Court held that an escape
that takes the form of a failure to report did not constitute a violent
felony within the meaning of the Armed Career Criminal Act. Id. at
822 (citing Chambers v. United States, 555 U.S. 122, 127-30
(2009)). The Hawkins court noted that a walkaway escape was
similar to a failure to report and, in light of Chambers, was not a
violent felony under the Armed Career Criminal Act or the similarly
worded career offender guideline. Id. at 822. Thereafter, the
petitioner filed his first collateral attack under § 2255, arguing that
he no longer qualified as a career offender. Id. at 822. The district
court denied the motion. Id.
The Seventh Circuit affirmed. The court reasoned that, after
United States v. Booker, 543 U.S. 220 (2005), the Guidelines are
not binding on the district court and “the judge may not even
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presume that a sentence within the applicable guidelines range
would be proper.” Id. (emphasis in original). The judge must
independently determine the appropriate sentence pursuant to 18
U.S.C. § 3553. Id. at 823. While recognizing that the Guidelines
remain influential, and that the district court may have imposed a
lower sentence had Chambers been decided earlier, the Seventh
Circuit noted that the district judge would not have been required
to give the petitioner a lower sentence. Id. at 824. Balancing the
interest in finality against the injustice of a possibly mistaken
sentence, the Seventh Circuit concluded that:
[W]e don’t think that a sentence that is well below the
ceiling imposed by Congress whether directly or by
delegation to the Sentencing Commission should, as
Hawkins argues, 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 824-25; 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 a § 2255 motion).
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Here, the Court sentenced Petitioner under the advisory
Guidelines to a sentence well below the statutory maximum
sentence of life. The purported error in designating Petitioner a
career offender is simply not cognizable on a § 2255 Motion.
Because Petitioner is not entitled to relief under § 2255, his Motion
is denied.
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. Therefore, the Court denies a certificate of
appealability.
IV. CONCLUSION
For the reasons stated, Petitioner Shance Dalton’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
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by a Person in Federal Custody (d/e 1) and amended motion (d/e 3)
are DENIED. The Court denies a certificate of appealability. This
case is CLOSED.
ENTER: April 25, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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