Swanson v. USA
Filing
39
OPINION entered by Judge Sue E. Myerscough on 05/16/2019. SEE WRITTEN OPINION. Petitioner Michael Swanson's Motion to Vacate Sentence Under 28 U.S.C. § 2255 (d/e 12 ) is GRANTED. Accordingly, the Court VACATES Petitioner's sentence in Case No. 00-cr-30018-1 and schedules a resentencing hearing in that case for Tuesday, June 18, 2019, at 3:00 p.m. in Courtroom I in Springfield, Illinois. Petitioner's Motion for Status Hearing (d/e 37 ) is DENIED as MOOT. (DM, ilcd)
E-FILED
Thursday, 16 May, 2019 10:55:08 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL SWANSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 15-cv-03262
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Petitioner Michael Swanson’s Motion to
Vacate Sentence Under 28 U.S.C. § 2255 (d/e 12). For the reasons
set forth below, Petitioner’s motion is GRANTED.
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).
United States v. Swanson, Central District of Illinois, Springfield
Division, Case No. 00-cr-30018-1 (hereinafter, Crim.), Indictment
(d/e 7). Following a jury trial, Petitioner was found guilty of the
charged offense. Crim., Verdict (d/e 102); United States v.
Swanson, 55 F. App’x 761, 761 (7th Cir. 2003).
Page 1 of 16
Prior to Petitioner’s sentencing, the U.S. Probation Office
prepared a Presentence Investigation Report, which stated that
Petitioner qualified as a career offender under § 4B1.1 of the United
States Sentencing Guidelines. Crim., Presentence Investigation
Report (d/e 146), ¶ 30. Petitioner’s designation as a career offender
was based on his unlawful restraint conviction in Macoupin
County, Illinois, Case No. 91-CF-256, and his aggravated battery
conviction in Champaign County, Illinois, Case No. 95-CF-2463. Id.
¶¶ 30, 37-38.
On May 3, 2002, Petitioner was sentenced to 264 months of
imprisonment and 5 years of supervised release. Crim., 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. Indeed, due to Petitioner’s status as a career offender, his
imprisonment range under the mandatory sentencing guidelines
was 262 to 300 months. Crim., Presentence Investigation Report, ¶
73.
Petitioner appealed his sentence, arguing that because his
unlawful restraint conviction was not a conviction for a “crime of
Page 2 of 16
violence,” as that term was defined in the sentencing guidelines, he
did not qualify as a career offender under the guidelines. Swanson,
55 F. App’x at 761. 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)). Accordingly, the crime of
unlawful restraint in Illinois was not a “crime of violence” under the
“elements clause” of § 4B1.2 of the sentencing guidelines. Id.
However, the Seventh Circuit went on to hold that unlawful
restraint qualified as a “crime of violence” under the “residual
clause” of § 4B1.2. Id. at 762-63. Petitioner’s sentence as a career
offender was affirmed. Id. at 763.
Petitioner timely filed his first § 2255 motion in May 2004.
See Swanson v. United States, Central District of Illinois,
Springfield Division, Case No. 04-cv-03102 (hereinafter, Case No.
04-03102), Petition (d/e 1). The motion was denied on December
14, 2004. Case No. 04-03102, Order (d/e 13). Petitioner’s
subsequent applications for leave to file a successive § 2255 motion
were denied. See Motion (d/e 12), at A21-22. However, in light of
Page 3 of 16
the Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015), the Seventh Circuit granted Petitioner’s application
for leave to file a successive § 2255 motion. See Order (d/e 9).
In the pending § 2255 motion, Petitioner claims that his May
2002 sentence was imposed in violation of the Due Process Clause
of the Fifth Amendment. See Motion, at 6. Petitioner, relying on
Johnson, argues that his due process rights were violated because
his career offender designation was based on the unconstitutionally
vague “residual clause” in § 4B1.2(a) of the sentencing guidelines,
the section of the guidelines that defined the term “crime of
violence.” See id.
In response, the Government argues that Petitioner’s § 2255
should be denied for three reasons: (1) Petitioner procedurally
defaulted his claim by failing to raise it on direct appeal; (2)
Petitioner is barred from challenging his sentence because he did so
on direct appeal, his initial § 2255 motion, and two prior
applications to file a successive § 2255 motion; and (3) the Supreme
Court has not made Johnson retroactive to cases on collateral
review involving the sentencing guidelines. Response (d/e 14), at 7.
Page 4 of 16
Notably, the Government waived any argument that the sentencing
guidelines are not subject to due process challenges. Id. at 5-7.
II. ANALYSIS
A.
Petitioner’s Sentence Was Imposed in Violation of the
Due Process Clause of the Fifth Amendment.
A person claiming that his sentence violates the Constitution
may move for the Court “to vacate, set aside, or correct [his]
sentence.” 28 U.S.C. § 2255(a). A brief overview of the recent
developments in the law regarding due-process vagueness
challenges is needed to explain why Petitioner is entitled to relief
under 28 U.S.C. § 2255.
The Armed Career Criminal Act (ACCA) enhances the penalties
for gun offenses under 18 U.S.C. § 922(g) if the defendant has three
prior convictions for a “violent felony,” a “serious drug offense,” or
both. 18 U.S.C. § 924(e). At the time Petitioner committed his
bank robbery offense in Case No. 00-cr-30018-1, the ACCA defined
“violent felony” in three ways. First, under the “elements clause,” a
felony that “has as an element the use, attempted use, or
threatened use of physical force against the person of another” was
a “violent felony.” 18 U.S.C. § 924(e)(2)(B)(i) (1994 & Supp. 1999).
Page 5 of 16
Second, under the “enumerated clause,” a felony that “is burglary,
arson, or extortion, [or] involves use of explosives” was a “violent
felony.” 18 U.S.C. § 924(e)(2)(B)(ii) (1994 & Supp. 1999). Third,
under the “residual clause,” a felony involving “conduct that
presents a serious potential risk of physical injury to another” was
a “violent felony. “ 18 U.S.C. § 924(e)(2)(B)(ii) (1994 & Supp. 1999).
In Johnson v. United States, the United States Supreme Court
held that the ACCA’s residual clause was unconstitutionally vague
because “the indeterminacy of the wide-ranging inquiry required by
the residual clause both denies fair notice to defendants and invites
arbitrary enforcement by judges.” 135 S. Ct. at 2557. Therefore,
“imposing an increased sentence under the residual clause of the
Armed Career Criminal Act violates the Constitution’s guarantee of
due process.” Id. at 2563.
The Supreme Court subsequently held that the rule it
announced in Johnson applied retroactively to cases on collateral
review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016)
(“Johnson announced a substantive rule that has retroactive effect
in cases on collateral review.”). Therefore, a petitioner could attack
the validity of his sentence in a § 2255 motion under Johnson. Id.
Page 6 of 16
After Johnson, the question remained as to whether the rule
announced in that case applied to the identically-worded residual
clause in § 4B1.2 of the sentencing guidelines. Similar to ACCA’s
enhanced penalties for a defendant who has three prior qualifying
convictions, § 4B1.1 of the sentencing guidelines provides for an
increased offense level for a defendant who qualifies as a career
offender. A defendant qualifies as a career offender if (1) he was at
least 18 years old when he committed the instant offense of
conviction, (2) the instant offense of conviction is a felony that is
either a “crime of violence” or a “controlled substance offense,” and
(3) 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(a).
Like the version of the ACCA in effect when Defendant
committed his bank robbery offense, the version of § 4B1.2 of the
sentencing guidelines in effect at Petitioner’s sentencing in Case No.
00-cr-30018-1 defined a “crime of violence” to include a felony
involving “conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a)(2) (2001). This language
tracked verbatim the language of the ACCA residual clause. See
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United States v. Hampton, 675 F.3d 720, 730 n.2 (7th Cir. 2012)
(noting that the case law interpreting “crime of violence” in § 4B1.2
of the sentencing guidelines and “violent felony” in the ACCA is
interchangeable).
In Beckles v. United States, the Supreme Court held that the
advisory sentencing guidelines are not subject to vagueness
challenges under the Due Process Clause and that the residual
clause in § 4B1.2 of the advisory guidelines is not void for
vagueness. 137 S. Ct. 886, 895 (2017). In so holding, the Supreme
Court noted that 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.” Id. at 892. Beckles did not address whether the mandatory
sentencing guidelines that applied prior to the Supreme Court’s
decision in Booker v. United States, 543 U.S. 220 (2005), were
subject to vagueness challenges under the Due Process Clause.
The Seventh Circuit addressed this unresolved question in the
consolidated cases of Cross v. United States and Davis v. United
States, 892 F.3d 288 (7th Cir. 2018) (hereinafter, Cross). There, the
Seventh Circuit held that, under Johnson, the mandatory
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sentencing guidelines are subject to attack on vagueness grounds.
Cross, 892 F.3d at 306. Because the ACCA residual clause and the
residual clause in § 4B1.2 of the mandatory sentencing guidelines
are “materially identical,” the Seventh Circuit also held that the
latter clause was unconstitutionally vague. Id. at 299-300; see also
D’Antoni v. United States, 916 F.3d 658, 659 (7th Cir. 2019).
Lastly, the Seventh Circuit held that Johnson is “substantive, and
therefore retroactive, when applied to the mandatory guidelines.”
Cross, 892 F.3d at 307.
Another development in Seventh Circuit jurisprudence
regarding the application of Johnson to the mandatory sentencing
guidelines, one of great import to Petitioner’s motion, took place
earlier this year. In D’Antoni v. United States, the petitioner, who
was sentenced under the mandatory guidelines, challenged his
career offender status in a successive § 2255 motion made in
reliance on Johnson. 916 F.3d at 661. Although the Government
argued that Cross was inapplicable because it “involved two initial §
2255 petitioners,” the Seventh Circuit did not accept this argument,
noting that the Government had conceded that the broad language
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employed in Cross precluded the argument, which the Government
asserted solely for preservation purposes. Id. at 662 n.2.
This framework compels a determination that Petitioner’s
sentence was imposed in violation of the Due Process Clause of the
Fifth Amendment. At the time Petitioner was sentenced, the
guidelines were mandatory. Petitioner was sentenced as a career
offender, a designation that greatly increased his mandatory
imprisonment guideline range. See Crim., Presentence
Investigation Report, ¶¶ 29-30, 43 (noting that Petitioner’s status as
a career offender resulted in an offense level of 34 (up from 28) and
a criminal history category of VI (up from V)). Petitioner’s
classification as a career offender was based, in part, on his
unlawful restraint conviction in Macoupin County, Illinois, Case No.
91-CF-256, an offense that qualified as a “crime of violence” only
under the “residual clause” of § 4B1.2 of the sentencing guidelines.
Under Johnson, a case made retroactively applicable to cases on
collateral review involving the mandatory guidelines, the “residual
clause” of § 4B1.2 of the mandatory sentencing guidelines is
unconstitutionally vague. Therefore, Petitioner’s unlawful restraint
Page 10 of 16
offense is not a “crime of violence.” Petitioner is not a career
offender.
However, this conclusion does not alone compel the vacatur of
Petitioner’s sentence, as first the Court must determine that
Petitioner’s § 2255 is timely and that Petitioner’s claim is not
procedurally barred.
B.
Petitioner’s § 2255 Motion Is Timely.
A § 2255 motion is timely if it is 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). Johnson, the Supreme
Court case on which Petitioner relies, was decided on June 26,
2015. The right recognized in Johnson was later made retroactively
applicable to cases on collateral review. Welch, 136 S. Ct. at 1268.
Petitioner filed his § 2255 motion approximately four months after
Johnson was decided. Therefore, Petitioner’s motion is timely
under § 2255(f)(3). See Cross, 892 F.3d at 294.
Page 11 of 16
C.
Petitioner § 2255 Motion is Not Procedurally Barred.
1.
Petitioner’s previous applications for a writ of habeas
corpus do not bar the current § 2255 motion.
The Government argues that Petitioner is barred from
challenging his career offender designation because he did so on
direct appeal, in his initial § 2255 motion, and in two prior
applications to file a successive § 2255 motion. Response, at 14-16.
The Court disagrees.
In Price v. United States, the Seventh Circuit found, in
circumstances nearly identical to those present here, that a
petitioner’s prior § 2255 motion challenging his status as an armed
career criminal did not preclude his subsequent motion based on
Johnson. 795 F.3d 731, 733 (7th Cir. 2015). Price’s first § 2255
motion relied on Begay v. United States and Sykes v. United States
“to argue that his convictions for criminal recklessness fell outside
the scope of ACCA’s definition of a crime of violence.” Id.
Price later filed a § 2255 motion based on Johnson. Id. at
732. The Seventh Circuit reasoned that because Price has never
before made a claim based on Johnson, his first § 2255 motion did
not preclude the second one. Id. at 733 (“[Price] never alleged then
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that ACCA’s residual clause itself was unconstitutionally vague.
This explains why 28 U.S.C. § 2244(b)(1), to the extent that it is
applicable, does not bar Price’s application: he has never presented
this claim before.”).
In accordance with Price, the Court finds that Petitioner’s
direct appeal, initial § 2255 motion, and two prior applications to
file a successive § 2255 motion do not preclude the instant § 2255
motion. Petitioner, in his direct appeal, argued that unlawful
restraint did not meet the “crime of violence” definition located in §
4B1.2 of the sentencing guidelines. Swanson, 55 F. App’x at 761.
Petitioner’s initial § 2255 motion argued (1) that his due process
rights were violated because the Government advanced new
grounds on appeal in support of affirmance and (2) that he received
ineffective assistance of counsel. See Case No. 04-03102, Order, at
4-5. Although Petitioner filed two applications for leave to file a
successive § 2255 motion, Petitioner’s arguments were the same as
those made in his direct appeal. See Motion, at A21-22. Prior to
the instant § 2255 motion, Petitioner never argued that the residual
clause in § 4B1.2(a) of the mandatory sentencing guidelines was
unconstitutionally vague.
Page 13 of 16
2.
Petitioner’s failure to raise the vagueness of the residual
clause in § 4B1.2 of the sentencing guidelines on direct
appeal does not bar Petitioner’s claim.
The Government contends that Petitioner’s claim is
procedurally defaulted because he did not challenge the
constitutionality of the residual clause on direct appeal. Response,
at 8-16. “The failure to raise an issue on direct appeal generally
bars a defendant from raising it later in a post-conviction
proceeding.” Barker v. United States, 7 F.3d 629, 632 (7th Cir.
1993). However, a petitioner may raise his constitutional claim for
the first time on collateral attack if he “can demonstrate cause for
the procedural default as well actual prejudice from the failure to
appeal.” Id. Procedural default here is excused because Petitioner
can show both cause and prejudice.
As the Seventh Circuit has recognized, an extended prison
term easily establishes prejudice to the petitioner. Cross, 892 F.3d
at 294 (“We have no doubt that an extended prison term—which
was imposed on both men as a result of their designation as career
offenders—constitutes prejudice.”).
Second, the cause of Petitioner’s procedural default is
excusable. A petitioner may be excused for failing to raise the issue
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on appeal if the petition is based on a Supreme Court decision that:
(1) explicitly overrules one of its precedents; (2) overturns a
longstanding and widespread practice of lower courts; or (3)
disapproves a practice that the Supreme Court previously
sanctioned. Reed v. Ross, 468 U.S. 1, 17 (1984). Given that
Johnson overruled two Supreme Court precedents, abrogated “a
substantial body of circuit court precedent upholding the residual
clause against vagueness challenges,” and disapproved the
Supreme Court’s implicit sanction of the guidelines’ residual clause,
Petitioner’s procedural default is excused on all three grounds.
Cross, 892 F.3d at 296. Simply put, Petitioner could not have
reasonably challenged the residual clause in the mandatory
sentencing guidelines on vagueness grounds when he was
sentenced in May 2002.
III. CONCLUSION
Because Petitioner’s unlawful restraint conviction did not
qualify as a conviction for a “crime of violence” under § 4B1.2(a) of
the mandatory sentencing guidelines, Petitioner did not qualify as a
career offender under § 4B1.1 of the mandatory guidelines when he
was sentenced. In addition, Petitioner’s § 2255 motion is timely, is
Page 15 of 16
not procedurally barred, and is based on a new constitutional rule
recognized in Johnson and made retroactive to cases on collateral
review by the Supreme Court in Welch.
Therefore, Petitioner Michael Swanson’s Motion to Vacate
Sentence Under 28 U.S.C. § 2255 (d/e 12) is GRANTED.
Accordingly, the Court VACATES Petitioner’s sentence in Case No.
00-cr-30018-1 and schedules a resentencing hearing in that case
for Tuesday, June 18, 2019, at 3:00 p.m. in Courtroom I in
Springfield, Illinois. Petitioner’s Motion for Status Hearing (d/e 37)
is DENIED as MOOT.
ENTER: May 16, 2019
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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