Sandoval v. United States of America
OPINION & ORDER entered by Judge Joe Billy McDade on 10/5/2017. Petitioners Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence filed on April 5, 2017 9 is GRANTED and Petitioners conviction for using and carrying a firearm during a kidnapping in violation of 18 U.S.C. § 924(c)(1)(A) in United States v. Sandoval, No. 4:99-cr-40019-JBM-2 (C.D. Ill.) is VACATED. This civil action is now TERMINATED.(RK, ilcd)
Thursday, 05 October, 2017 03:45:09 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
UNITED STATES OF AMERICA,
Case No. 4:16-cv-4135
Honorable Joe B. McDade
OP INI ON & OR DE R
This matter is before the Court on the “Petitioner’s Amended Motion Under 28
U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence” (Doc. 9). The matter has
been fully briefed and is ready for disposition. For the reasons stated below the motion
is GRANTED. Petitioner’s conviction for using or carrying a firearm in furtherance
of a kidnapping offense is VACATED.
On August 28, 2002, Hector Sandoval was convicted by a jury of kidnapping in
violation of 18 U.S.C. § 1201(a)(1) and using and carrying a firearm during that
kidnapping—a “crime of violence”—in violation of 18 U.S.C. § 924(c)(1)(A). He was
sentenced to 120 months imprisonment for kidnapping, 120 consecutive months for
the use and carry conviction, and three years of supervised release. His conviction
and sentence were affirmed on appeal. United States v. Sandoval, 347 F.3d 627 (7th
Cir. 2003). On September 1, 2004, in post-conviction proceedings, Sandoval filed a
motion under 28 U.S.C. § 2255 to vacate or correct his sentence in the criminal case.
He later filed an amended § 2255 motion along with a supporting memorandum of
law on April 28, 2005. (Docs. 13 and 14, No. 4:04-cv-4056). In that motion, Sandoval
argued that he was actually innocent of the crimes for which he was convicted (Doc.
2 at 2, No. 4:04-cv-4056). That § 2255 motion was denied by this Court on September
25, 2007 (Doc. 25, No. 4:04-cv-4056). Sandoval filed a Motion for Certificate of
Appealability (Doc. 28, No. 4:04-cv-4056), which was denied by this Court (Doc. 30,
No. 4:04-cv-4056), but granted by the Court of Appeals on April 15, 2008. The denial
of the § 2255 motion was then ultimately affirmed in Sandoval v. United Sates, 574
F.3d 847 (7th Cir. 2009). Sandoval then filed a Rule 60(b) motion for relief from the
denial of the § 2255 motion (Doc. 46, No. 4:04-cv-4056) that was denied (Doc. 47, No.
4:04-cv-4056), as was his Rule 59(e) motion for reconsideration (Doc. 48, No. 4:04-cv4056) of the order denying the Rule 60(b) motion. (Text Order, August 15, 2011, No.
4:04-cv-4056). No appeal was taken from the dispositions of those motions.
On September 3, 2014, Sandoval again filed a motion under Federal Rule of
Civil Procedure 60(b)(6) to reopen habeas proceedings. (Docs. 53 and 56, No. 4:04-cv4056). On September 8, 2014, this Court denied the Rule 60(b) motion because the
motion did not implicate any of the permissible grounds authorized by Rule 60(b) and
it was clear that Sandoval was merely attempting to utilize Rule 60 as either an
appeal of the denial of his prior § 2255 motion or as a substitute for a properly
authorized successive § 2255 motion. (Doc. 54 at 3-4, No. 4:04-cv-4056).
On December 16, 2014, Sandoval filed a letter with the Court seeking
resentencing for his criminal convictions to a term of time served. (Doc. 58, No. 4:04cv-4056). In the letter, Sandoval again attempted to invoke the jurisdiction of the
district court to gain freedom on the basis of actual innocence. However, in his letter,
Sandoval sought for the Chief Judge of the Central District of Illinois to unilaterally
resentence him for his criminal convictions. The Court explained that to properly
pursue an actual innocence claim, Sandoval must follow the avenues laid out for him
at Chapter 153 of Title 28 of the United States Code. See 28 U.S.C. § 2241 et. seq.
On January 28, 2015, Sandoval filed yet another petition for habeas relief
under 28 U.S.C. § 2241. The Court dismissed the petition as it found the petition to
be a successive attempt to press claims of innocence that Sandoval had previously
put before the Court.
Then, on June 20, 2016, Sandoval filed an application pursuant to 28 U.S.C. §
2244(b)(3) in the Seventh Circuit Court of Appeals requesting authorization to file a
successive motion under 28 U.S.C. § 2255. In it, Sandoval explained that he wished
to challenge his conviction under 18 U.S.C. § 924(c) for using and carrying a firearm
while committing a crime of violence. The crime of violence upon which his § 924(c)
conviction rested was kidnapping in violation of 18 U.S.C. § 1201(a). The Seventh
Circuit noted that this Court’s characterization of kidnapping as a crime of violence
was suspect in light of Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015) and
that the question of whether Johnson applied to § 924(c) was best left to this Court
where the issue could be better fully developed and addressed.
The Supreme Court held in Johnson that the “residual clause” of 18 U.S.C. §
924(e)(2)(B)(ii) was void for vagueness. 135 S. Ct. at 2563. A year later, that court
held that Johnson applies retroactively to cases on collateral review. Welch v. United
States, 2016 U.S. LEXIS 2451 (U.S. Apr. 18, 2016). After Sandoval filed his
application, the Seventh Circuit held that the residual clause of 18 U.S.C. §
924(c)(3)(B) is void for vagueness under Johnson. United States v. Cardena, 842 F.3d
959, 996 (7th Cir. 2016). Section 924(c)(3)(B) defined a “crime of violence” as “an
offense that is a felony and… that by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the course of
committing the offense.” On February 2017, the Seventh Circuit also held that
kidnapping in violation of 18 U.S.C. § 1201(a) does not have as an element the use,
attempted use or threatened use of physical force against the person such that it could
satisfy the so-called Force clause of § 924(c)(3)(A). United States v. Jenkins, 849 F.3d
Section 2255 of Title 28 of the United States Code provides that a sentence
may be vacated, set aside, or corrected “upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject to collateral attack.”
“Relief under § 2255 is an extraordinary remedy because it asks the district court
essentially to reopen the criminal process to a person who already has had an
opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.
2007). Thus, § 2255 relief is limited to correcting errors of constitutional or
jurisdictional magnitude or errors constituting fundamental defects that result in
complete miscarriages of justice. E.g., Kelly v. United States, 29 F.3d 1107, 1112 (7th
Cir. 1994), overruled on other grounds by United States v. Ceballos, 26 F.3d 717 (7th
Cir. 1994). “A § 2255 motion is not a substitute for a direct appeal.” Coleman v. United
States, 318 F.3d 754, 760 (7th Cir. 2003) (citing Doe v. United States, 51 F.3d 693, 698
(7th Cir. 1995)). Generally, a 2255 motion must be filed within one year of the date
the judgment against the movant became final. 28 U.S.C. § 2255(f)(1); Clay v. United
States, 537 U.S. 522, 527 (2003) (“Finality attaches when this Court... denies a
petition for a writ of certiorari, or when the time for filing a certiorari petition
expires.”). However, sub-paragraph (f)(3) provides that a 2255 motion may be timely
if it is brought 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).
Sandoval’s Petition is Timely.
The Government contends that Sandoval’s challenge is actually untimely
because the literal requirements of 28 U.S.C. § 2255(f)(3) are supposedly not met. The
statute provides that a “one year period of limitation shall apply to a motion under
[section 2255]. The limitation period shall run from the latest of... (3) 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). Sandoval contends that his §
924(c) conviction cannot stand in light of Johnson and the Government contends that
because the Supreme Court has not yet specifically recognized the rule of Johnson to
apply to § 924(c), Sandoval’s challenge cannot be deemed timely under § 2255(f)(3).
The Court finds that Sandoval’s challenge is timely. Sandoval filed his
application pursuant to 28 U.S.C. § 2244(b)(3) on June 20, 2016, which was within
one year of the Supreme Court’s decision in Johnson v. United States, June 26, 2015.
Although the filing of this action occurred several years after Sandoval’s actual
conviction, the Court finds that the exception contained in § 2255(f)(3) applies.
Despite the Government’s contentions, the Court finds the Johnson holding, although
explicitly dealing with 18 U.S.C. § 924(e)(2)(B) of the ACCA, actually applies in scope
to all criminal statutes that utilize the two-step categorical framework in the manner
the ACCA did in 18 U.S.C. § 924(e)(2)(B). The Government is correct that Johnson
and Welch both contain language that superficially warns courts from applying their
holdings to “the many laws that ‘require gauging the riskiness of conduct in which an
individual defendant engages on a particular occasion.’” Welch, 136 S. Ct. at 1262
citing Johnson, 135 S. Ct. at 2561. But it is equally clear that their holdings extend
to statutes that either criminalize conduct or set sentences for conduct and ask the
courts to determine the kind of conduct that the crime involves in “the ordinary case”
in an indeterminate fashion and then to assess whether that ordinary case of the
crime presents a serious potential risk of physical injury. Welch, 136 S. Ct. at 1262.
That analysis is what the Seventh Circuit applied in depth in United States v. VivasCeja, 808 F.3d 719, 722–23 (7th Cir. 2015), in analyzing 18 U.S.C. § 16(b), and it is
also what that court applied in a cursory fashion in Cardena, 842 F.3d at 997, in
analyzing § 924(c). Thus, in this judicial circuit at least, Johnson is regarded to have
already supplied the right to effectuate the exception of § 2255(f)(3) when challenging
a criminal statute that operates as the residual clause of 18 U.S.C. § 924(e)(2)(B) did.
That right is the privilege to not be subjected to a criminal statute that first asks the
court to determine the kind of conduct that the crime involves in “the ordinary case”
in an indeterminate fashion and then to assess whether that ordinary case of the
crime “presents a serious potential risk of physical injury.” See Vivas-Ceja, 808 F.3d
719, 722 (7th Cir. 2015).
In support of its position, the Government cites a few district court cases 1 for
the proposition that Johnson does not implicate § 2253(f)(3) for cases that do not
involve the ACCA. In the first case, Davis v. United States, 2017 WL 3129791 (E.D.
Wis. July 21, 2017), the court did not conclude as a general matter that Johnson does
not implicate § 2253(f)(3) for cases that do not involve the ACCA. Instead, the Davis
court analyzed the specific question of whether a challenge to the pre-Booker
Sentencing Guidelines was within the scope of Johnson. It found that it was not,
primarily because the Guidelines are not of the same legal status and heft as a statute
and thus the Guidelines do not operate in the same fashion as a statute. Id. at * 3-6.
The Davis court characterized the issue of timeliness as hinging on a dispute over the
scope of the new right recognized by the Court in Johnson, with the petitioner arguing
that the right recognized by the Johnson court was the broad right to be resentenced
without a vague residual clause and the Government arguing that there was no such
right, particularly in light of United States v. Beckles, 137 S. Ct. 886 (2017), where
the Supreme Court found held that the advisory Sentencing Guidelines were not
The Government also cites some appellate cases from other judicial circuits, but
since this Court is located in the Seventh Circuit it will focus on cases from within its
subject to a vagueness challenge under the Due Process Clause because they were
not a statute that fixed sentences like the ACCA does. At the end of the day, all the
Davis court concluded was that a motion raising a Johnson-based challenge against
the mandatory Sentencing Guidelines’ residual clause is not properly raised pursuant
to § 2255(f)(3).
Another of the district court cases the Government cites concluded that “the
Supreme Court has not addressed whether Johnson applies to the residual clause of
Section 924(c)(3)(B).” United States v. Jackson, No. CR 09-20124-01-KHV, 2017 WL
2807700, at *2 (D. Kan. June 29, 2017). As should be evident from the foregoing
discussion, this Court disagrees with that conclusion and is of the opinion that courts
such as the Jackson court are reading Johnson’s holding too myopically.
As discussed above, this Court does not believe Johnson merely applies to the
ACCA’s residual clause for purposes of § 2255(f)(3). Instead, this Court—aided by the
Seventh Circuit’s holdings in Vivas-Ceja and Cardena—finds that the right
recognized in Johnson applies to criminal statutes that operate as the residual clause
of the ACCA did.
This conclusion is buttressed by the fact that the Seventh Circuit itself granted
Sandoval’s application pursuant to 28 U.S.C. § 2244(b)(3) in which Sandoval sought
authorization to file a successive motion to vacate under § 2255 to challenge his §
924(c) conviction. Moreover, the Seventh Circuit specifically directed this Court to
reach the substance of the claim as to whether Johnson reached § 924(c)’s residual
clause. (See Doc. 1-1). The one year limitations restriction found in 28 U.S.C. §
2255(f)(3) is also found in 28 U.S.C. § 2244(d)(1)(C) and if the Seventh Circuit
seriously thought the right announced by the Supreme Court in Johnson was
insufficient to satisfy § 2255(f)(3) then it would not have granted Sandoval’s
application in the first place; instead, it would have denied the application pursuant
to § 2244(d)(1)(C).
For the reasons stated above, the Court finds Sandoval’s challenge is timely.
Sandoval Did Not Procedurally Default His Claim.
The Government’s contention that Sandoval procedurally defaulted his claim
is based on the same contention that Johnson did not set forth a new rule of
constitutional law regarding § 924(c) to satisfy § 2255(f)(3). As discussed above, the
Court does not agree with that contention. Johnson set forth a new rule of
constitutional law regarding any criminal statute that operates in the manner that
the residual clause of the ACCA, codified at 18 U.S.C. § 924(e), did and Welch made
that holding retroactive to cases on collateral review. (See Doc. 1-1).
Sandoval’s Conviction Under 924(c) Cannot Stand.
The Seventh Circuit has held that under the rule of Johnson, the residual
clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. Cardena, 842 F.3d at
996. The only clause left, the so-called Force clause of 18 U.S.C. § 924(c)(3)(A), has
been held not to include the offense of kidnapping under 18 U.S.C. § 1201(a). Jenkins,
849 F.3d at 393-94. Sandoval was convicted by a jury of kidnapping in violation of 18
U.S.C. § 1201(a) (1) and using and carrying a gun during that kidnapping in violation
of 18 U.S.C. § 924(c)(1)(A). His § 924(c) conviction cannot stand. It must be vacated
and the matter remanded to the criminal docket for resentencing.
For the reasons set forth above, Petitioner’s “Amended Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence” filed on April 5, 2017 (Doc. 1) is
GRANTED and Petitioner’s conviction for using and carrying a firearm during a
kidnapping in violation of 18 U.S.C. § 924(c)(1)(A) in United States v. Sandoval, No.
4:99-cr-40019-JBM-2 (C.D. Ill.) is VACATED. This civil action is now TERMINATED.
Entered this 5th day of October, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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