Swanson v. USA
Filing
25
OPINION BY SUE E. MYERSCOUGH, U.S. District Judge: The Court has chosen to exercise its inherent authority and grant Petitioner bail pending the resolution of his pending § 2255 motion. Petitioner's oral motion for bail is GRANTED. SEE WRITTEN OPINION. Entered on 9/28/2016. (MJ, ilcd)
E-FILED
Wednesday, 28 September, 2016 03:38:49 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL SWANSON
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.
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Civil No. 15-03262
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Petitioner Michael Swanson’s oral motion
for bond pending a determination of the motion he filed pursuant to
28 U.S.C. § 2255 in this case. Petitioner’s motion is GRANTED.
Petitioner has shown that he has raised, in his pending habeas
case, a substantial constitutional claim upon which he has a high
probability of success and that exceptional circumstances exists
which require bail to make the habeas remedy effective.
I. BACKGROUND
In March 2000, Petitioner was charged by indictment with one
count of bank robbery in violation of 18 U.S.C. § 2113(a) and (d).
Page 1 of 7
United States v. Swanson, Central District Illinois, Springfield
Division, Case No. 00-CR-300018 (hereinafter, Case No. 00-30018,
Indictment (d/e 7). Following a jury trial, Petitioner was found
guilty of the charged offense. Case No. 00-30018, Verdict (d/e 102);
United States v. Swanson, 55 F. App’x 761, 761 (2003). On May 3,
2002, Petitioner was sentenced to 264 months of imprisonment.
See Case No. 00-30018, Judgment (d/e 144); Swanson, 55 F. App’x
at 761. Petitioner’s sentence was based, in part, on a determination
that he “qualified as a career offender under the Sentencing
Guidelines.” Swanson, 55 F. App’x at 761.
Petitioner appealed his sentence, arguing that his prior felony
conviction for unlawful restraint was not a “crime of violence,”
meaning that he lacked the two prior convictions necessary to be
classified as a career offender under the Sentencing Guidelines. Id.
The Seventh Circuit noted that “Illinois courts have stated that
‘[a]ctual or physical force is not a necessary element of unlawful
restraint as long as an individual's freedom of locomotion is
impaired.’” Id. at 762 (citing People v. Bowen, 609 N.E.2d 346, 361
(Ill. App. Ct. 1993)). Thus, the crime of unlawful restraint in Illinois
was not a “crime of violence” under the “elements clause” of the
Page 2 of 7
career offender guideline. Id. However, the Seventh Circuit went on
to hold that unlawful restraint did qualify as a “crime of violence”
under the “residual clause” of the career offender guideline. Id. at
762-63. Petitioner’s sentence as a career offender was affirmed. Id.
at 763.
Petitioner timely filed his first § 2255 petition in May 2004.
See Swanson v. United States, Central District of Illinois,
Springfield Division, Case No. 04-03012 (hereinafter, Case No. 0403012), Petition of Writ of Habeas Corpus (d/e 1). The petition was
denied on December 14, 2004. Case No. 04-03012, December 13,
2004 Order (d/e 13). Petitioner’s subsequent motions for leave to
file a successive § 2255 motion were denied. See Swanson v.
United States, No. 08-3494 (7th Cir. Oct. 20, 2008); Swanson v.
United States, No. 10-1461 (7th Cir. Mar. 5, 2010).
In 2015, the Supreme Court decided Johnson v. United States,
135 S. Ct. 2551 (2015), in which it held that the residual clause of
the Armed Career Criminal Act was unconstitutionally vague. 135
S. Ct. at 2562-63. In light of this holding, the Seventh Circuit
granted Petitioner’s motion for leave to file a successive § 2255
motion. See Swanson v. United States, No. 15-2776 (7th Cir. Sept.
Page 3 of 7
4, 2015). At a hearing on September 9, 2016, Petitioner made an
oral motion for bond pending a determination of his § 2255 motion.
II. ANALYSIS
“[F]ederal district judges in habeas corpus and section 2255
proceedings have inherent power to admit applicants to bail
pending the decision of their case . . .” Cherek v. United States,
767 F.2d 335, 337 (7th Cir. 1985). It does not appear that the
Seventh Circuit has formulated a standard as to when a judge may
grant a motion for bond in the context of a § 2255 proceeding other
than to state that the power to grant bond in such circumstances
should “be exercised very sparingly.” Id. A case from the Urbana
Division of this District has held, however, that bail should be
granted pending post-conviction habeas corpus review only “when
the petitioner has raised substantial constitutional claims upon
which he has a high probability of success” and “extraordinary or
exceptional circumstances exist which make the grant of bail
necessary to make the habeas remedy effective.” Douglas v. United
States, No. 06-CV-2113, 2006 WL 3627071, at *1 (C.D. Ill. Dec. 11,
2006) (citing Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir.
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1992)). Petitioner has met both prongs of this test with respect to
his pending § 2255 motion.
A.
Petitioner has raised a constitutional claim upon which he
has a high probability of success.
A large majority of federal appellate circuits have held or
assumed that Johnson, a holding that has since been made
retroactive, see Welch v. United States, 136 S. Ct. 1257, 1268
(2016), is applicable to the United States Sentencing Guidelines.
See United States v. Hurlburt, ___ F.3d ___, 2016 WL 4506717, at
*7 (2016) (discussing cases). Further, the Supreme Court is
scheduled to hear a case involving Johnson’s applicability to the
guidelines from the lone circuit that has held that Johnson does not
apply to the Sentencing Guidelines, the Eleventh Circuit. See
Beckles v. United States, 616 F. App’x 415, 416 (11th Cir. 2015),
cert. granted, 136 S. Ct. 2510 (2016). Given the overwhelming
consensus that Johnson applies to the guidelines, the likelihood of
Petitioner prevailing on his pending § 2255 motion is not “nil”
despite the Government’s argument to the contrary. Rather, the
Court finds that Petitioner has shown a high probability of success
on the constitutional claim to be determined in Beckles.
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B.
Exceptional circumstances justify Petitioner’s release on
bond.
If Petitioner’s § 2255 motion is successful, he should not have
been sentenced as a career offender. According to the Presentence
Investigation Report filed in Petitioner’s criminal case, without the
career offender classification, Petitioner’s total offense level would
have been 28 and his criminal history category would have been V.
Case No. 00-30018, Presentence Investigation Report (PSR) (d/e
146), ¶¶ 29, 43. A total offense level of 28 coupled with a criminal
history category of V results in a guidelines sentencing range of
130-162 months. As Petitioner has been incarcerated for more
than 190 months, if his pending § 2255 motion is successful, he
will have already served a sentence in excess of what could have
been imposed under the mandatory guidelines that were in place at
the time of his sentencing had he not been classified as a career
offender.
Further, the Court finds that Petitioner is a good candidate for
bond. He has no serious infractions in the Bureau of Prisons
(BOP). He has a supportive family that plans to provide him with a
place to live and employment with the family towing business.
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Moreover, Petitioner’s prison record evidences an ability and desire
to work, as he has participated in the UNICOR jobs program, taught
classes in a variety of fields, and completed 1,187 hours of classes
and BOP’s nine-month Challenge Program.
III. CONCLUSION
For the reasons stated, the Court has chosen to exercise its
inherent authority and grant Petitioner bail pending the resolution
of his pending § 2255 motion. Petitioner’s oral motion for bail is
GRANTED.
ENTER: September 28, 2016.
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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