Morris v. United States of America
Filing
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OPINION: Petitioner's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (d/e 6 ) is DENIED. The Court denies a certificate of appealability. This case is CLOSED. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 4/30/2019. (GL, ilcd)
E-FILED
Tuesday, 30 April, 2019 04:26:29 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KATRELL MORRIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 16-cv-03197
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on Petitioner Katrell Morris’s
Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (d/e 6). Petitioner served a fifteen-year term in
federal prison pursuant to the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), before being released from custody on October
20, 2016. He asks the Court to vacate his sentence under
Johnson v. United States, 135 S. Ct. 2551 (2015). The motion is
DENIED. Petitioner is not entitled to relief on the merits because
Petitioner’s conviction for attempted robbery qualifies as a violent
felony under the still-valid elements clause of the ACCA.
I. BACKGROUND
On May 14, 2001, Petitioner was arrested for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). On July
27, 2001, Petitioner pleaded guilty to this charge. In its
Presentence Investigation Report (PSR), the Probation Office
determined that Petitioner qualified as an armed career criminal
under the Armed Career Criminal Act (ACCA) because the
Petitioner had at least three prior convictions for a violent felony as
defined in 18 U.S.C. § 924(e)(2). PSR ¶ 21. Specifically, Petitioner
had two Illinois convictions for aggravated discharge of a firearm
and one juvenile adjudication for attempted robbery. See 18
U.S.C. § 924(e)(2)(C) (“[T]he term ‘conviction’ includes a finding that
a person has committed an act of juvenile delinquency involving a
violent felony.”).
Petitioner’s designation as an armed career criminal resulted
in a ten-level offense enhancement. On December 7, 2001, the
sentencing court imposed a fifteen-year term of imprisonment
under the ACCA. Petitioner did not challenge the inclusion of his
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attempted robbery conviction as a qualifying offense under the
ACCA either at the sentencing hearing or on direct appeal.1
On June 9, 2016, Petitioner filed this Section 2255 motion,
asserting that, under Johnson v. United States, his Illinois
conviction for attempted robbery no longer qualifies as a violent
felony under the ACCA and, therefore, he should be re-sentenced
without the ACCA enhancement. On July 1, 2016, the Seventh
Circuit granted Petitioner’s application to file a second or
successive motion under Section 2255. Morris v. United States,
827 F.3d 696 (7th Cir. 2016). On August 25, 2016, Petitioner, now
with the assistance of appointed counsel, filed the amended motion
under Section 2255 that is now before the court.
Petitioner appealed his sentence on the grounds that the two aggravated
discharge of a firearm convictions occurred on the same evening and therefore
could not count as two separate qualifying offenses for the purposes of the
ACCA. United States v. Morris, 293 F.3d 1010, 1012 (7th Cir. 2002). The
Seventh Circuit rejected that argument and affirmed the sentence. Id.
Petitioner then filed a motion to vacate his sentence under Section 2255,
claiming among other things that defense counsel should have objected at
sentencing to the treatment of Petitioner’s attempted robbery conviction as a
qualifying offense under the ACCA because the finding of juvenile delinquency
was made by a judge rather than a jury. The district court judge denied the
petition and the Seventh Circuit affirmed the denial of relief. Morris v. United
States, 118 F. App’x 72 (7th Cir. 2004) (unpublished) (“Morris’ Illinois juvenile
adjudication for attempted robbery is just such a violent felony.”).
1
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II. ANALYSIS
Section 2255 allows a person convicted of a federal crime to
move a court to vacate, set aside, or correct a sentence. 28 U.S.C.
§ 2255. It is an extraordinary remedy, because a Section 2255
petitioner has already had “an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Post-conviction relief under Section 2255 is therefore “appropriate
only for an error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” Harris v. United States, 366 F.3d
593, 594 (7th Cir. 2004) (quotation omitted).
In his Section 2255 motion, Petitioner argues that his
attempted robbery conviction qualified as a violent felony under
the ACCA only under the residual clause. Petitioner argues that,
in light of Johnson, his attempted robbery conviction no longer
qualifies as a predicate offense and he is not subject to a Section
924(e) enhancement.
Generally, the penalty for the offense of being a felon in
possession of a firearm, 18 U.S.C. § 922(g), is up to ten years’
imprisonment. 18 U.S.C. § 924(a)(2). However, if a defendant
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violates Section 922(g) and has three previous convictions for
violent felonies or serious drug offenses, or a combination of the
two, the ACCA increases the sentence to a term of imprisonment of
not less than fifteen years and up to life. 18 U.S.C. § 924(e)(1);
Johnson, 135 S. Ct. at 2555.
The ACCA defines a violent felony as:
[A]ny crime punishable by imprisonment for a term
exceeding one year . . . that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the person or
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B) (emphasis added). The underlined portion
is referred to as the “residual clause.” The other sections are
referred to as the “elements clause” (18 U.S.C. § 924(e)(2)(B)(i)) and
the “enumerated clause” (the portion listing burglary, arson,
extortion, and offenses that involve the use of explosives). See
Taylor v. United States, No. 12-CR-30090-MJR, 2015 WL 7567215,
at *13 (S.D. Ill. Nov. 25, 2015) (noting that, until Johnson was
decided, “a prior conviction could qualify as a violent felony under
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three different sections of the ACCA—the elements clause, the
enumerated clause, or the residual clause”).
In Johnson v. United States, the Supreme Court invalidated
the residual clause of the ACCA, 18 U.S.C. § 924(e)(1), because the
language of the clause was unconstitutionally vague. 135 S. Ct. at
2557; see 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony” as a
felony that “involves conduct that presents a serious risk of
physical injury to another”). The Supreme Court later ruled that
its holding in Johnson applied retroactively and, therefore, a
petitioner may raise a claim under Johnson, attacking the validity
of his sentence, in a Section 2255 motion. See Welch v. United
States, 136 S. Ct. 1257, 1268 (2016) (“Johnson announced a
substantive rule that has retroactive effect in cases on collateral
review.”).
The record in this case is unclear as to whether the
sentencing court found that Petitioner’s conviction for attempted
robbery qualified as a violent felony under the elements clause or
the residual clause. At the sentencing hearing, the court stated
that “[t]here has been no objection raised to the attempted robbery
adjudication as being an offense which would qualify as a prior
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crime of violence. . . . And in this case, robbery has elements of
violence in the definition in Illinois, so that clearly does qualify.
There’s no objection to that.” (Tr. 21). The Government argues
that this statement indicates that the sentencing court found that
the attempted robbery conviction fell under the elements clause.
This Court disagrees. Neither the PSR nor the transcript of the
sentencing hearing specify under which clause of the ACCA
Petitioner’s conviction for attempted robbery was found to be a
violent felony. See PSR ¶ 21 (stating that Petitioner’s attempted
robbery conviction was a violent felony “as defined in 18 U.S.C. §
924(e)(2)”).
Without insight into whether the sentencing court relied on
the still-valid elements clause or the now-invalid residual cause,
this court must determine whether, if the sentencing court relied
on the residual clause, such reliance was ultimately harmless. See
Van Cannon v. United States, 890 F.3d 656, 661 (7th Cir. 2018)
(“To win § 2255 relief, [the petitioner] had to establish a Johnson
error and that the error was harmful.”). This inquiry requires an
assessment of whether the attempted robbery conviction was a
violent felony under the elements clause of the ACCA, regardless of
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any application it may have had under the residual clause. If the
attempted robbery conviction could not have met the elements
clause, then it necessarily must have been found to be a violent
felony under the residual clause, and Johnson would provide relief
from Petitioner’s ACCA enhancement.
To determine whether a prior conviction qualifies as a violent
felony under the ACCA’s elements clause, courts use the
“categorical approach.” Descamps v. United States, 133 S. Ct.
2276, 2283 (2013). This approach directs courts to “‘look only to
the statutory definitions’—i.e., the elements—of a defendant’s prior
offenses and not ‘to the particular facts underlying those
convictions’” in determining whether the offense fits within the
particular ACCA clause defining violent felony. Id. (quoting Taylor
v. United States, 495 U.S. 575, 600 (1990)).
A violent felony under § 924(e)(2)(B)(i) “has as an element the
use, attempted use, or threatened use of physical force against the
person or another.” In this context, “physical force” is “violent
force—i.e., force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559 U.S. 133, 134
(2010) (emphasis and citation omitted). When determining
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whether a particular offense meets the elements clause, the court
is bound by the state statute defining the offense, as well as the
state courts’ interpretation of the statutory elements. Id. at 133–
34 (“The Court is bound . . . by the Florida Supreme Court’s
interpretation of the elements of the state law offense . . . .”).
At the time that Petitioner was found delinquent for
committing attempted robbery, Illinois defined robbery as “tak[ing]
property . . . from the person or presence of another by the use of
force or by threatening the imminent use of force.” 720 ILCS
5/18-1(a) (1997). Illinois courts have consistently required that
the force used or threatened be violent physical force. The Illinois
Supreme Court has held that “the degree of force necessary to
constitute robbery must be such that the power of the owner to
retain his property is overcome, either by actual violence physically
applied, or by putting him in such fear as to overpower his will.”
People v. Bowel, 488 N.E.2d 995, 997 (Ill. 1986). Illinois case law
demonstrates that the level of force required to sustain a
conviction for robbery is “force capable of causing physical pain or
injury to another person.” Johnson, 559 U.S. at 134.
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The Seventh Circuit has unequivocally held that convictions
for Illinois robbery are violent felonies under the elements clause of
the ACCA. United States v. Dickerson, 901 F.2d 579, 584 (7th Cir.
1990) (“[A] violation of the Illinois robbery statute per se
constitutes a violent felony for purposes of 18 U.S.C. § 924(e)(2)(B)
. . . .”). ). More recently, the United States Supreme Court has
made clear that a robbery offense requiring force “capable of
causing physical injury . . . when it is sufficient to overcome a
victim’s resistance . . . satisfies ACCA’s elements clause.”
Stokeling v. United States, 139 S. Ct. 544, 554 (2019). Illinois’
robbery statute is precisely such an offense.
The next question is whether attempted robbery meets the
elements clause of the ACCA. At the time of Petitioner’s conviction,
in Illinois, “[a] person commits the offense of attempt when, with
intent to commit a specific offense, he does any act which
constitutes a substantial step toward the commission of that
offense.” 720 ILCS 5/8-4(a) (1997). Because the statute is a
general attempt statute to be applied to numerous offenses, “the
language of the attempt statute, standing alone, does not greatly
advance our inquiry.” United States v. Collins, 150 F.3d 668, 671
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(7th Cir. 1998) (“Therefore, we must also look to Wisconsin caselaw
to see how the Wisconsin courts have interpreted the attempt
statute in the context of burglary.”). In this case, the Court must
look to how Illinois courts have applied the general attempt statute
to the crime of robbery.
Illinois courts have taken the elements of the attempt and
robbery statutes together when considering the elements of
attempted robbery. People v. Williams, 355 N.E.2d 597, 600 (Ill.
App. Ct. 1976). Illinois courts have established that the essential
elements of attempted robbery are a substantial step toward the
commission of the robbery and an attempt to take property from
the person or presence of another by the use of force or threat of
use of force. Illinois v. Martin, 210 N.E.2d 587, 589 (Ill. App. Ct.
1965). “The use of force or the threat of the imminent use of force
is an essential element in the crimes of robbery and attempted
robbery.” Illinois v. Ashford, 308 N.E.2d 271, 275 (Ill. App. Ct.
1974).
At the time Petitioner filed his motion under Section 2255,
whether attempted robbery in Illinois “has as an element the use,
attempted use, or threatened use of physical force against the
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person of another,” 18 U.S.C. 924(e)(2)(B)(i), under the ACCA, was
not decided. That question has since been settled.
When the Seventh Circuit granted Petitioner leave to file a
successive motion under Section 2255, Judge Hamilton wrote a
separate concurrence addressing concerns about “whether to treat
as violent felonies prior convictions for attempts to commit crimes
that would, if completed, clearly be violent felonies under the
surviving elements clause” of the ACCA. Morris v. United States,
827 F.3d 696, 698 (7th Cir. 2016) (Hamilton, J., concurring).
Judge Hamilton wrote separately to suggest that “as a matter of
statutory interpretation, an attempt to commit a crime should be
treated as an attempt to carry out acts that satisfy each element of
the completed crime.” Id. (emphasis omitted). In this view, then,
“[i]f the completed crime has as an element the use, attempted use,
or threatened use of physical force against the person or property
of another, then attempt to commit the crime necessarily includes
an attempt to use or to threaten use of physical force against the
person or property of another.” Id. (emphasis omitted).
A little more than a year after granting Petitioner leave to
proceed on his successive motion under Section 2255, the Seventh
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Circuit adopted as the law of the circuit the analysis Judge
Hamilton set forth in Morris. In that case, the Seventh Circuit
concluded that “[w]hen a substantive offense would be a violent
felony under § 924(e) . . ., an attempt to commit that offense is also
a violent felony.” Hill v. United States, 877 F.3d 717, 719 (7th Cir.
2017). While the particular crime at issue in Hill was attempted
murder, subsequent decisions by the Seventh Circuit have made
clear that attempted robbery in Illinois is a qualifying conviction
under the still-valid elements clause of the ACCA. See United
States v. D.D.B., 903 F.3d 684, 691 (7th Cir. 2018) (noting, in
comparing attempted robbery under Indiana state law with
attempted robbery under Illinois state law, that “[t]he crime of
attempted robbery in Illinois thus requires proof of intent to carry
out all of the elements of the crime of robbery, including the
element of ‘use of force or by threatening the imminent use of
force’” (quoting 720 ILCS 5/18-1(a))). Therefore, Petitioner is not
entitled to relief under Section 2255, as his conviction for
attempted robbery under Illinois law is a qualifying conviction
under the elements clause of the ACCA.
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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 Section 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). In addition, when a Section 2255 motion is denied on
procedural grounds, a certificate of appealability should issue only
when the petitioner shows that reasonable jurists “would find it
debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, Petitioner has not made a substantial showing of the
denial of a constitutional right or that a reasonable jurist would
find it debatable whether the district court was correct in its
procedural ruling. Therefore, the Court denies a certificate of
appealability.
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IV. CONCLUSION
For the reasons stated, Petitioner’s Amended Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (d/e 6)
is DENIED. The Court denies a certificate of appealability. This
case is CLOSED.
ENTER: April 30, 2019
FOR THE COURT:
/s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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