Zollicoffer v. United States of America
Filing
13
ORDER AND OPINION Entered by Judge Sue E. Myerscough on 01/09/2017. SEE WRITTEN OPINION. The Court chooses to exercise its inherent authority to release Petitioner on bond pending the resolution of his § 2255 motion. Petitioner's Motion for Bond (d/e 10 ) is GRANTED. The Bureau of Prisons is ORDERED to release Petitioner on recognizance bond forthwith. This case is hereby STAYED pending the Supreme Courts decision in Beckles v. UnitedStates. (DM, ilcd) Typo corrected--Modified on 1/9/2017 (DM, ilcd).
E-FILED
Monday, 09 January, 2017 02:41:53 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MYRON ZOLLICOFFER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil No. 15-03337
ORDER AND OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Petitioner Myron Zollicoffer’s Motion for
Bond (d/e 10), in which he requests bond pending a determination
of the motion he filed pursuant to 28 U.S.C. § 2255. Petitioner’s
motion is GRANTED. Petitioner has shown that he has raised a
substantial constitutional claim upon which he has a high
probability of success and that exceptional circumstances exist that
require bail to make the habeas remedy effective.
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I. BACKGROUND
In October 2002, Petitioner was charged by indictment with
three counts of distributing a substance containing crack cocaine,
in violation of 21 U.S.C. § 841(a)(1). United States v. Zollicoffer,
Central District of Illinois, Springfield Division, Case No. 02-CR30104 (d/e 1). On February 14, 2003, Petitioner pleaded guilty to
the charged offenses. The Presentence Investigation Report
prepared in anticipation of Petitioner’s sentencing found Petitioner
to be a career offender based on a prior conviction for manufacture
or delivery of cannabis and a prior conviction for reckless discharge
of a firearm. The career offender enhancement increased
Petitioner’s base offense level from 23 to 34. Case No. 02-30104,
Presentence Investigation Report (PSR), ¶ 27.
Based on his total offense level of 34 and his criminal history
category of VI, which would not have changed absent his career
offender designation, Petitioner’s imprisonment guideline range at
sentencing was 262 to 327 months. Had Petitioner’s total offense
level been 23, his imprisonment guideline range would have been
92 to 115 months. On July 29, 2003, Petitioner was sentenced to
230 months of imprisonment. Although Petitioner appealed, he
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later filed a motion to dismiss the appeal, which the Seventh Circuit
granted. See Case No. 02-30104 (d/e 43).
Petitioner timely filed his first § 2255 petition in 2004. See
Zollicoffer v. United States, Central District of Illinois, Springfield
Division, Case No. 04-CV-03239 (d/e 1). The motion was denied on
February 22, 2005. Id. (d/e 8).
In 2010, Petitioner filed an application to file a successive §
2255 petition in the Seventh Circuit, arguing that Chambers v.
United States, 555 U.S. 122 (2009), mandated that his reckless
discharge of a firearm conviction could not be a crime of violence,
thereby eliminating the career offender enhancement. See Seventh
Circuit Case No. 10-1615. The Seventh Circuit denied the
application, finding Chambers did not announce a new
constitutional rule but rather defined a statutory term. Id. (d/e 2).
Petitioner then filed a petition pursuant to 28 U.S.C. § 2241 in
this Court. See Zollicoffer v. Rios, Central District of Illinois,
Springfield Division, Case No. 10-01238. Petitioner argued he was
actually innocent of the career offender enhancement because the
guidelines were incorrectly applied to find that his reckless
discharge of a firearm conviction qualified under the residual clause
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of § 4B1.2(a) as a crime of violence. The § 2241 petition was
denied. Id. (d/e 7).
In 2015, the Supreme Court decided Johnson v. United States,
in which it held that a residual clause of the Armed Career Criminal
Act (ACCA), which classified an offense as a “crime of violence” if it
involved “conduct that presents a serious potential risk of physical
injury to another,” was unconstitutionally vague. 135 S. Ct. 2551,
2554, 2562-63 (2015). In light of Johnson, the Seventh Circuit
granted Petitioner’s application for authorization to file a successive
§ 2255 motion. See Case No. 15-03337 (d/e 2).
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). The Seventh Circuit has not yet
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
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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-CV2113, 2006 WL 3627071, at *1 (C.D. Ill. Dec. 11, 2006) (citing
Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 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.
Before Johnson, but after Petitioner’s sentencing, the Seventh
Circuit held that reckless discharge of a firearm, as defined by
Illinois law, could not be a “crime of violence,” as that term was
defined by the United States Sentencing Guidelines, except under
the residual clause of § 4B1.2(a). United States v. Newbern, 479
F.3d 506, 509-11 (7th Cir. 2007), overruled by United States v.
Smith, 544 F.3d 781, 786 (7th Cir. 2008). Accordingly, if the
Supreme Court promulgates a new rule in Beckles that the residual
clause’s definition of “crime of violence” in the United States
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Sentencing Guidelines is unconstitutionally vague and determines
that this rule applies retroactively, Petitioner will not have the two
felony convictions needed to be classified as a career offender. The
Government does not dispute this conclusion in its opposition to
Petitioner’s Motion for Bond.
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), extends to the United States Sentencing Guidelines. See
United States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016)
(discussing cases). Further, the Supreme Court heard oral
argument in a case this month involving whether Johnson should
be extended to the guidelines from the lone circuit that has held
that Johnson does not apply to the Sentencing Guidelines. 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 the rule promulgated in Johnson extends to the
guidelines, the chance that Petitioner will prevail on his pending §
2255 motion is high.
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The fact that the Supreme Court made Johnson retroactive,
see Welch v. United States, 136 S. Ct. at 1268, leads this Court to
the conclusion that a holding in Beckles that the Guidelines are
subject to vagueness challenges, which will result in the residual
clause of the career offender guideline being deemed
unconstitutionally vague, will also be made retroactive, especially
given that successive § 2255 motions, if not based on newly
discovered evidence, must be based on “a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2)
(emphasis added). In short, the Court finds that Petitioner has
shown a high probability of success on the constitutional claim on
which his pending § 2255 motion is based.
B.
Exceptional circumstances justify Petitioner’s release on
bond.
Petitioner has served approximately 152 months in prison for
the offense for which he was sentenced in his underlying criminal
case. If his § 2255 motion is successful, Petitioner will be
resentenced without having the designation of a career offender.
The result is that if Petitioner’s pending § 2255 motion is
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successful, he will have already served a sentence approximately
three years longer than the top of the current guideline range for
his offense.
Further, the Court finds that Petitioner is a good candidate for
bond. He has supportive parents who plan to provide him with a
place to live. Moreover, Petitioner has completed numerous courses
and obtained his GED certificate while in prison. He is also
currently enrolled in the Bureau of Prisons’ Residential Drug Abuse
Program. Petitioner has worked consistently while in custody and
has received positive reviews for that work. And although the
Government correctly notes that Petitioner has several infractions
during his time in the custody of the Bureau of Prisons, the Court
notes that only one of those infractions occurred after 2011.
III. CONCLUSION
For the reasons stated, the Court chooses to exercise its
inherent authority to release Petitioner on bond pending the
resolution of his § 2255 motion. Petitioner’s Motion for Bond (d/e
10) is GRANTED. The Bureau of Prisons is ORDERED to release
Petitioner on recognizance bond forthwith. This case is hereby
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STAYED pending the Supreme Court’s decision in Beckles v. United
States.
ENTER: January 9, 2017.
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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