Gallivan v. United States of America
Filing
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ORDER AND OPINION entered by Chief Judge James E. Shadid on 11/4/2016. For the reasons stated above, Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 USC § 2255 1 is DENIED. This matter is now terminated. See full written Order.(VH, ilcd)
E-FILED
Friday, 04 November, 2016 10:41:38 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
DENNIS P. GALLIVAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 16-2162
Crim. Case No. 13-20054
ORDER AND OPINION
This matter is now before the Court on Petitioner Gallivan’s § 2255 Motion to Vacate, Set
Aside, or Correct Sentence. For the reasons set forth below, Petitioner’s Motion [1] is Denied.
BACKGROUND
Petitioner pled guilty in a written agreement to one count of aggravated bank robbery
(Count 1) and one count of brandishing a firearm during the robbery (Count 2). As a result of the
Plea Agreement, he received credit for acceptance of responsibility, a sentencing
recommendation from the Government with a capped maximum, and a sentence of 12 months
and 1 day on Count 1 and 84 months consecutive on Count 2. In exchange for these benefits,
Gallivan waived his right to collaterally attack his sentence. He now brings this § 2255 action
seeking to vacate, set aside, or correct his sentence pursuant to Johnson v. United States, 135
S.Ct. 2251 (2015), arguing that the prior conviction for brandishing a firearm no longer qualifies
as a “crime of violence.” This Order follows.
STANDARD OF REVIEW
A petitioner may avail himself of § 2255 relief only if he can show that there are “flaws
in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or
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result in a complete miscarriage of justice.” Boyer v. United States, 55 F.2d 296, 298 (7th Cir.
1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that
“vitiate the sentencing court’s jurisdiction or are otherwise of constitutional magnitude.” Guinan
v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th
Cir. 1993). A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United
States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States,
75 F.3d 1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to
circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456
U.S. 152, 165 (1982); Doe, 51 F.3d at 698.
ANALYSIS
Petitioner claims in his § 2255 Motion that his sentence is invalid because the Court
found that he was eligible for a consecutive, mandatory sentence based on a finding that he had
committed a crime of violence under 18 U.S.C. § 924(c). Initially, the Court must address
whether Gallivan’s collateral attack waiver bars consideration of the present motion.
Appeal and collateral attack waivers contained in plea agreements are generally
enforceable. Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013). That being said, there
are a few exceptions to this general rule; plea waivers are not enforceable if they are involuntary,
if the sentence exceeds the statutory maximum, if the court relied on a constitutionally
impermissible factor, or if there was ineffective assistance of counsel with respect to the
negotiation of the plea agreement. Id., at 964-66; United States v. Behrman, 235 F.3d 1049, 1052
(7th Cir. 2000); Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). Gallivan does not
assert any of these exceptions. In fact, Gallivan does not even mention his Plea Agreement or
waviers, much less provide any argument as to ineffective assistance or involuntariness.
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Paragraph 34 of the Plea Agreement provides as follows:
The defendant also understands that he has a right to attack his sentence collaterally on
the grounds it was imposed in violation of the Constitution or laws of the United States,
he received ineffective assistance from his attorney, this Court was without proper
jurisdiction or the sentence was otherwise subject to collateral attack. The defendant
understands such an attack is usually brought through a motion pursuant to Title 28,
United States Code, Section 2255. The defendant and his attorney have reviewed Section
2255, and the defendant understands the rights that statute gives him. The defendant's
attorney has fully discussed and explained this waiver with the defendant. The defendant
specifically acknowledges that the decision to waive the right to challenge any later
claim of the ineffectiveness of the defendant's counsel was made by the defendant alone
notwithstanding any advice the defendant mayor may not have received from the
defendant's attorney regarding this right. Regardless of any advice his attorney has given
him one way or the other, in exchange for the concessions made by the United States in
this Plea Agreement, including an agreement to be sentenced to a specific sentence as set
forth above, the defendant hereby knowingly and voluntarily waives his right to
challenge any and all issues relating to his Plea Agreement, conviction and sentence,
including any fine or restitution, in any collateral attack, including, but not limited to, a
motion brought under Title 28, United States Code, Section 2255. The defendant
acknowledges and agrees that the effect of this waiver is to completely waive any and all
rights and ability to appeal or collaterally attack any issues relating to his conviction and
to his sentence so long as the defendant is sentenced as set forth in this Plea Agreement,
excepting only those claims that relate directly to the negotiation of this waiver itself.
Gallivan then agreed to representations regarding the voluntariness of the waivers in Paragraph
35.
The defendant states that he has not been coerced, threatened, intimidated, or in any other
way involuntarily persuaded to waive his rights to appeal or collaterally attack his
sentence by his attorney or anyone else. The defendant is waiving those rights because he
personally believes it is in his best interest to do so in order to obtain the benefit of the
concessions made by the United States in this agreement. The defendant understands the
United States is unwilling to make some of those concessions unless he is willing to
waive his rights to appeal or collaterally attack his sentence as part of the bargain. The
defendant and asks the Court to accept this waiver so he can receive the full benefit of
this agreement.
Finally, before signing, he agreed to statements in Paragraph 42 of the Plea Agreement indicating
the informed and voluntary nature of the entire plea, including the waiver provisions.
I have read this entire Plea Agreement carefully and have discussed it fully with
my attorney, Carlton M. Kagawa. I fully understand this agreement and accept and agree
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to it without reservation, including the paragraphs labeled "Waiver of Right to Appeal"
and "Waiver of Right to Collateral Attack."
I am entering into this agreement voluntarily and of my own free will in order to
gain the benefit of the promises made by the United States. I am pleading guilty
because I am in fact guilty, and I agree that the facts stated in this agreement about my
criminal conduct are true. No threats, promises, or commitments have been made to
me or to anyone else, and no agreements have been reached, express or implied, to
influence me to plead guilty other than those stated in this written Plea Agreement nor
am I under the influence of anything that could impede my ability to understand fully
this Plea Agreement.
I am satisfied with the legal services provided by my attorney in connection with this
case, this Plea Agreement and matters related to it. I further understand that by signing
below I am stating I agree with everything stated in this section of the Plea Agreement
and I am accepting and entering into this Plea Agreement in it's entirety.
I hereby reaffirm that absolutely no promises, agreements, understandings, or
conditions have been made or entered into in connection with my decision to plead
guilty except those set forth in this Plea Agreement.
Magistrate Judge Bernthal then entered a Report & Recommendation dated January 17, 2014, in
which he found that Gallivan’s guilty plea was knowing and voluntary, which was subsequently
adopted by Judge McCuskey.
Based on consideration of these representations by Gallivan, which are entitled to a
presumption of verity, as well as the lack of any contrary assertions in the § 2255 motion, the
Court finds that Gallivan has failed to demonstrate that his collateral attack waiver should not be
enforced. United States v. Barnes, 405 F.3d 634, 636-37 (7th Cir. 2005) (finding that plea waivers
are enforceable even where there is an unforeseen change in the law in favor of the defendant
after sentencing); United States v. McGraw, 571 F.3d 624, 631 (7th Cir. 2009). Enforcement of
the waiver bars any further consideration of his § 2255 motion. That being said, in an
abundance of caution given the changing landscape of precedent in the wake of Johnson, the
Court will alternatively address the merits of the motion.
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On June 26, 2015, the Supreme Court held that the residual clause of the Armed Career
Criminal Act violates due process because the clause is too vague to provide adequate notice.
Johnson v. United States, 135 S.Ct. 2551 (2015). The residual clause of the ACCA struck down
by the Supreme Court has been extended to the residual clause in 18 U.S.C. § 16(b), which is
similar to the definition applied in § 924(c)(3)(B). In Price v. United States, the Seventh Circuit
held that Johnson announced a new substantive rule of constitutional law that the Supreme Court
has categorically made retroactive to final convictions. 795 F.3d 731, 732 (7th Cir. 2015). That
decision also made clear that Johnson is retroactive not only to cases on direct appeal, but also to
cases on collateral review. Id.
Petitioner’s Motion seeks to invoke Johnson, claiming that the holding in that case
necessarily rendered the residual clause of 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague.
Johnson invalidated only the residual clause of the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B). However, the Seventh Circuit has applied Johnson to the definition of “crime of
violence” in 18 U.S.C. § 16(b), which is nearly identical to the language in § 924(c)(3)(B).
United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015). Accordingly, it is plausible that
the reasoning of Johnson applies to the residual clause in § 924(c)(3)(B) and renders it
unconstitutionally vague, and the Seventh Circuit has assumed as much without specifically
deciding the issue. United States v. Armour, ___ F.3d ___, 2016 WL 6440383, at **2-3 (7th Cir.
Nov. 1, 2016).
That being said, the record indicates that Petitioner would not be entitled to relief as the
underlying crime at issue here is federal bank robbery, which qualifies as a crime of violence
under 18 U.S.C. § 16(a)(1) rather than the residual clause, as it “has as an element the use,
attempted use, or threatened use of physical force against the person of another.” This
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conclusion was essentially confirmed by the Seventh Circuit with respect to the crime of
attempted armed bank robbery in holding that “the federal crime of attempted armed bank
robbery qualifies as a crime of violence under the ‘elements’ clause of the definition, which is
not unconstitutionally vague.” Armour, ___ F.3d ___, 2016 WL 6440383, at *2 (7th Cir. Nov. 1,
2016), citing United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991)(holding that “[a] defendant
properly convicted of bank robbery is guilty per se of a crime of violence, because violence in
the broad sense that includes a merely threatened use of force is an element of every bank
robbery.”) This was so even though the defendant did not actually enter the bank during the
attempted robbery. Id., at **2-3. Accordingly, convictions qualifying under the elements clause
were unaffected by the holding in Johnson. Id. As bank robbery was necessarily a crime of
violence, the Seventh Circuit also affirmed the defendant’s conviction for “using or brandishing a
firearm during and in relation to a ‘crime of violence’” against a Johnson challenge. Id., at *5. 1
Gallivan would therefore not be entitled to relief under Johnson even if he were not
barred by the waivers in his Plea Agreement from bringing this collateral attack.
CERTIFICATE OF APPEALABILITY
To obtain a certificate of appealability, a petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C § 2253(c)(2). The petitioner must also show that
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been
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).
Here, even when the questions of waiver, as well as applicability and retroactivity of
Johnson to cases under different statutes on collateral review, are construed in his favor, no
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The Court notes that Gallivan does not make the other challenge to his 924(c) conviction that was made in Armour,
namely that there were insufficient facts to support the seven-year mandatory minimum sentence for brandishing a
firearm. See, United States v. Armour, ___ F.3d ___, 2016 WL 6440383, at **5-6 (7th Cir. Nov. 1, 2016).
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reasonable jurist could conclude that Petitioner’s claims were not either devoid of factual support or
flatly contradicted by Federal law. Accordingly, this Court will not issue him a certificate of
appealability.
CONCLUSION
For the reasons stated above, Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 USC § 2255 [1] is DENIED. This matter is now terminated.
ENTERED this 4th day of November, 2016.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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