United States of America v. Scalise
Filing
21
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 11/8/2017. Mailed notice.(ym, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Case Nos. 16 C 6450
16 C 6455
16 C 7631
v.
ROBERT PULLIA, JOSEPH
SCALISE, and ARTHUR RACHEL,
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are Motions under 28 U.S.C. § 2255 to Set
Aside, Correct, or Vacate Defendants’ Sentences.
As the parties
briefed these cases in consolidated fashion and Defendants were
all prosecuted in the same underlying criminal case, the Court
issues the following single Opinion denying Defendants Pullia’s
and
Scalise’s
Motions
with
prejudice
and
denying
Defendant
Rachel’s Motion without prejudice.
I.
On
January
13,
2011,
BACKGROUND
the
Government
indicted
Defendants
Robert Pullia (“Pullia”), Joseph Scalise (“Scalise”), and Arthur
Rachel (“Rachel”) on four counts:
conspiring to participate in
the affairs of an enterprise through a pattern of racketeering
activity,
conspiring
in
to
violation
interfere
of
18
with
U.S.C.
commerce
§
1962(d)
through
(Count
I);
robbery,
in
violation
of
the
Hobbs
Act,
18
U.S.C.
§
1951
(Count
II);
possessing a firearm in furtherance of a crime of violence, in
violation
of
18
U.S.C.
§
924(c)
(Count III);
and
possessing
a
firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)
(Count IV).
Just
guilty
to
over
all
a
year
four
later,
Pullia
counts.
Their
and
plea
Scalise
each
agreements
pleaded
detail
the
dealings of a criminal organization that included, among others,
Pullia, Scalise, and Rachel.
The organization had as its object
the commission of certain federal and state crimes.
its
members
conspired
to
rob
an
armored
truck
Specifically,
and
engaged
in
surveillance to identify the time and manner in which the truck
visited
a
local
performing
bank.
(Scalise
surveillance
on
and
other
Pullia
also
robbery
admitted
targets.)
to
Scalise
admitted that he suggested spraying resisting victims with tear
gas.
In addition, Pullia and Scalise admitted that they conspired
with
Rachel
to
break
into
a
residence
property from its inhabitants.
three
men
break-in.
surveilled
the
Ultimately,
use
force
to
take
As with the armored truck, the
residence
they
and
agreed
ahead
on
of
a
the
contemplated
break-in
strategy
involving drilling a hole through the mortar surrounding a glass
block window located on the side of the house.
On April 7, 2010,
Scalise began drilling a hole through the mortar, and reported his
- 2 -
progress to Pullia and Rachel (who were waiting in a nearby van
and
monitoring
police
radio
traffic).
Both
Defendants
also
admitted that Scalise used an alias to rent a garage for the
purpose
of
storing
stolen
vehicles,
firearms,
magazines,
ammunition, and masks for use in the course of the enterprise’s
illegal activity.
and
Scalise
Both previously convicted of felonies, Pullia
admitted
to
possessing
at
least
one
of
the
three
firearms stored in the garage for use in the commission of the
enterprise’s planned robberies.
By the terms of the plea agreements, the parties could not
ask for a sentence outside the agreed range of 106 to 117 months
and neither Pullia nor Scalise would be bound by his plea unless
the Court imposed a sentence within this range.
290,
ECF
No.
11(c)(1)(C)).)
199
(“Pl.
Agr.”)
¶
10
(citing
(Case No. 10 CR
FED. R. CRIM. P.
Also included in each agreement is a provision
waiving the defendant’s right to seek collateral review under 28
U.S.C. § 2255.
The exceptions to this waiver are for claims of
involuntariness, ineffective assistance of counsel with respect to
the waiver itself, and motions “seeking a reduction of sentence
based
directly
on
a
change
in
the
law
that
is
applicable
to
defendant and that, prior to the filing of defendant’s request for
relief, has been expressly made retroactive by an Act of Congress,
- 3 -
the Supreme Court or the United States Sentencing Commission.”
(Pl. Agr. ¶ 17(b).)
The case against Rachel, however, proceeded to a bench trial.
The
Government
presented
evidence
consistent
with
the
above
factual bases for Pullia’s and Scalise’s pleas. On January 26,
2012, the Court convicted Rachel on the first three counts but
acquitted him on Count IV, finding “overwhelming evidence” that
Rachel conspired with Pullia and Scalise “to take property from
the person or presence of Mrs. Lascola, the owner of that home, by
force or threat of imminent force, and that several steps were
taken in furtherance of the conspiracy.” (Case No. 10 CR 290-3,
ECF No. 221 (“Rachel Findings”) at 3:14-19.)
The Court placed
emphasis on Rachel’s arrest outside the residence clad in dark
clothes
and
within
reach
of
a
panoply
of
burglary
tools.
Similarly, the Court found that Rachel “conceded his participation
in the conspiracy by discussing the robbery and noting that he
wanted ‘biggest gun we got’” in connection with the armored truck
robbery.
(Id.
foreseeability
at
and
6:4-7.)
“in
Finally,
furtherance”
the
Court
rationales
applied
articulated
the
in
Pinkerton v. United States, 328 U.S. 640 (1946), to find Rachel
guilty
on
personally
Count
III
possessed
despite
the
his
firearms
garage.
- 4 -
contention
found
in
that
he
Scalise’s
had
not
rented
On June 7, 2012, the Court sentenced Rachel to a total term
of imprisonment of 101 months - 41 months on Counts I and II, and
a consecutive term of 60 months on Count III.
appeal.
Rachel did not
On August 29, 2012, the Court sentenced Scalise to a
total term of imprisonment of 106 months – 46 months on Counts I,
II, and IV, and a consecutive term of 60 months on Count III.
Pullia received the same sentence on that day. As a condition of
their respective pleas, Pullia and Scalise waived their appeal
rights.
On
June
21,
2016,
Scalise
and
Pullia
filed
their
§
2255
Motions arguing that their convictions on Count III for possessing
a firearm in furtherance of a crime of violence are invalid under
Johnson v. United States, 135 S.Ct. 2251 (2015). On July 28, 2016,
Rachel filed his own analogous § 2255 Motion.
II.
Section
petition
the
2255
allows
sentencing
LEGAL STANDARD
a
person
court
for
aside, or correcting his sentence.
is
“reserved
for
extraordinary
held
an
in
order
federal
custody
to
vacating,
setting
28 U.S.C. § 2255(a).
Relief
situations.”
Hays
v.
United
States, 397 F.3d 564, 566 (7th Cir. 2005) (quoting Prewitt v.
United States, 83 F.3d 812, 816 (7th Cir. 1996)).
A petitioner
must establish that “the district court sentenced him in violation
of the Constitution or laws of the United States or that the
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sentence was in excess of the maximum authorized by law or is
otherwise subject to collateral attack.” Id. at 566-67 (quoting
Prewitt, 83 F.3d at 816).
III.
DISCUSSION
All three Defendants were sentenced to the mandatory minimum
of
60
months’
imprisonment
under
18
U.S.C.
§ 924(c)(1)(A)(i),
which applies to a defendant who uses or carries a firearm during
the commission of any “crime of violence.”
A “crime of violence”
is an offense that both is a felony and either “(A) has as an
element
the
use,
attempted
use,
or
threatened
use
of
physical
force against the person or property of another, or (B) 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.”
18 U.S.C. § 924(c)(3)(A)-(B).
Subpart (A) is the so-called “elements clause,” whereas subpart
(B) is known as the “residual clause.” Underlying each Defendant’s
guilty plea (or, in Rachel’s case, conviction) on Count III under
§
924(c)
was
a
guilty
plea
(or
conviction)
conspiracy to commit Hobbs Act robbery.
on
Count
II
for
(The Court notes that
“[e]very circuit to have considered the issue has concluded that
§ 924(c) does not require the defendant to be convicted of (or
even
charged
with)
the
predicate
crime,
so
long
as
there
is
legally sufficient proof that the predicate crime was, in fact,
- 6 -
committed.”
Johnson v. United States, 779 F.3d 125, 129 (2d Cir.
2015) (citations omitted); see also, Davila v. United States, 843
F.3d
729,
731
“requires
a
(7th
minimum
Cir.
2016)
sentence
of
(holding
five
that
years
§
if
924(c)(1)(A)
the
firearm
is
possessed during and in relation to a drug offense or a crime of
violence
‘for
which
the
person
may
be
prosecuted’
(emphasis
added); it does not require a prosecution for or conviction of
that other offense”) (citations omitted).)
In Johnson v. United States, 135 S.Ct. 2551, 2557 (2015), the
Supreme Court held unconstitutionally vague the residual clause in
the
Armed
Career
924(e)(2)(B)(ii).
then
gave
review.
that
Criminal
Act
(the
“ACCA”),
18
U.S.C.
Welch v. United States, 136 S.Ct. 1257 (2016),
decision
retroactive
application
on
collateral
Defendants contend in their § 2255 Motions that their
sentences on Count III cannot be sustained because, under Johnson
and
its
clause
Seventh
is
Circuit
progeny,
unconstitutionally
§
vague.
924(c)’s
And
similar
because
residual
Hobbs
Act
conspiracy does not qualify as a predicate “crime of violence”
under
the
elements
clause
of
§
924(c)(3),
Defendants
contend,
there is no anchor for their guilty pleas (or, in Rachel’s case,
conviction) and subsequent sentences under § 924(c).
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A.
The Residual Clause of Section 924(c)
Is Unconstitutionally Vague
Defendants
are
correct
unconstitutionally vague.
that
§
924(c)(3)(B)
is
United States v. Cardena, 842 F.3d 959,
995-96 (7th Cir. 2016) (“[W]e hold that the residual clause in 18
U.S.C. § 924(c)(3)(B) is . . . unconstitutionally vague.”).
The
Government maintains that Johnson’s rationale does not render §
924(c)’s residual clause unconstitutionally vague as applied to
the facts of this case and that the Seventh Circuit in Cardena and
its progenitor, United States v. Vivas-Ceja, 808 F.3d 719 (7th
Cir. 2015), committed grave error in finding § 924(c)(3)(B) and 18
U.S.C. § 16(b), respectively, facially unconstitutionally vague.
The Government seeks to drive a wedge between Johnson’s rationale
and these two Seventh Circuit cases by arguing, for example, that
§ 924(e), unlike § 924(c), contained a list of enumerated offenses
that contributed to the statute’s confusion and enjoyed extensive
review by lower courts prior to the vagueness determination.
the
Seventh
arguments.
insists
Circuit
See,
that
has
rejected
Vivas-Ceja,
808
Johnson . . . placed
these
F.3d
at
and
723
special
other
(“The
emphasis
Yet
similar
government
on
the
confusion created by the list of enumerated crimes preceding the
residual clause, see, Johnson, 135 S.Ct. at 2558-60, a feature not
present in § 16(b).
The government overreads this part of the
- 8 -
Court’s analysis. . . . The list itself wasn’t one of the ‘two
features’
that
combined
to
make
the
clause
unconstitutionally
vague.”) (quotation omitted); ibid. (“Section 16(b), on the other
hand,
hasn’t
produced
a
shifting
and
irreconcilable
body
of
caselaw, so the government thinks it’s unnecessary to throw in the
towel
and
declare
argument,
too,
state
the
of
the
statute
overstates
caselaw
the
was
not
unconstitutionally
Court’s
a
vague.
point. . . . The
necessary
[Johnson] Court’s vagueness determination.”).
condition
This
chaotic
to
the
This Court is duty-
bound to follow Cardena and the Vivas-Ceja court’s rejection of
the Government’s arguments. Per Cardena, § 924(c)(3)(B) is indeed
unconstitutionally vague.
B. Hobbs Act Conspiracy Is Not a Crime of Violence
within the Meaning of Section 924(c)’s Elements Clause
Given
the
unconstitutionality
of
the
residual
clause,
Defendants’ sentences on Count III for conspiracy to commit Hobbs
Act robbery must find their bedrock in the elements (or “force”)
clause of § 924(c)(3)(A).
Defendants argue that the elements of
Hobbs
not
Act
requirement
conspiracy
of
the
do
“use,
satisfy
attempted
the
use,
or
elements
threatened
clause’s
use
of
physical force,” and thus that the offense can never qualify as a
crime of violence under the elements clause.
a
predicate
offense
so
qualifies,
- 9 -
courts
To determine whether
use
a
categorical
approach and look only to the statutory elements of the offense –
not the facts underlying a particular commission of the offense.
See, Descamps v. United States, 133 S.Ct. 2276, 2283 (2013).
To
prove Hobbs Act conspiracy, the Government must establish “that
two or more persons agreed to commit an unlawful act, and that the
defendant knowingly and intentionally joined in the agreement.”
United
States
v.
Haynes,
582
F.3d
686,
698
(7th
Cir.
2009),
abrogated on other grounds, United States v. Vizcarra, 668 F.3d
516 (7th Cir. 2012).
The
Government
reminds
the
Court
that
Hobbs
Act
robbery
constitutes a “crime of violence” under the elements clause of
§ 924(c)(3).
See, United States v. Anglin, 846 F.3d 954, 965 (7th
Cir. 2017) (“Hobbs Act robbery is a ‘crime of violence’ within the
meaning of § 923(c)(3)(A).
In so holding, we join the unbroken
consensus of other circuits to have resolved this question.”),
cert. granted and judgment vacated on other grounds, Anglin v.
United States, No. 16-9411, 2017 WL 2378833 (U.S. Oct. 2, 2017).
In addition, attempted Hobbs Act robbery may well rise to a “crime
of violence.”
See, United States v. Rivera, 847 F.3d 847, 848-49
(7th Cir. 2017) (holding that the Hobbs Act “has as an element the
use, attempted use, or threatened use of physical force against
the person of another”) (emphasis added) (citing Anglin, 846 F.3d
at 965); Morris v. United States, 827 F.3d 696, 699 (7th Cir.
- 10 -
2016) (Hamilton, J., concurring) (“If the completed crime has as
an element the actual 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.”); accord, Smith v. United States, No. 16 C
6445,
ECF No. 18,
(Leinenweber,
articulated
slip
J.)
in
op.
(“The
Anglin,
at
3-5
Court
(N.D.
finds
Rivera,
and
Ill.
Apr.
the
that
Morris
12,
principles
are
2017)
sufficiently
consistent with . . . out-of-circuit cases to justify classifying
attempted
Hobbs
Act
robbery
as
a
crime
of
violence
under
the
elements (or force) clause of § 924(c)(3).”).
However, the Government points to no authority recognizing
the offense of Hobbs Act conspiracy as a crime of violence within
the
meaning
overwhelming
of
§ 924(c)’s
weight
opposite conclusion.
C
7086,
2017
WL
of
elements
post-Johnson
clause.
authority
Indeed,
comes
to
the
the
See, e.g., Hargrove v. United States, No. 16
4150718,
at
*3
(N.D.
Ill.
Sept.
19,
2017)
(“Because neither of the elements of Hobbs Act conspiracy requires
the conspirator to use, attempt, or threaten the use of physical
force, Hobbs Act conspiracy does not categorically qualify as a
crime of violence under § 924(c)’s force clause.”); United States
v. Hernandez, 228 F.Supp.3d 128, 138-39 (D. Me. 2017) (“I conclude
- 11 -
that conspiracy to commit Hobbs act robbery is categorically not a
crime of violence under the force clause of § 924(c)(3)(A).”);
Deering v. United States, No. 15 C 8320, 2016 WL 7178461, at *3
(N.D. Ill. Dec. 8, 2016) (same); United States v. Baires-Reyes,
191 F.Supp.3d 1046, 1050-51 (N.D. Cal. June 7, 2016) (“[T]he force
clause explicitly encompasses attempted use of physical force; by
contrast,
924(c)’s
States
conspiracy
force
v.
is
not
specifically
clause . . . .”)
Smith,
215
(emphasis
F.Supp.3d
1026,
covered
in
by
Section
original);
1034
(D.
Nev.
United
2016)
(“Agreeing to commit a robbery does not necessarily involve the
use, attempted use, or threatened use of physical force”); United
States v. Luong, No. 2:99 CR 433, 2016 WL 1588495, at *2 (E.D.
Cal. Apr. 20, 2016) (holding that conspiracy to commit Hobbs Act
robbery did not satisfy the force clause because a jury would “not
[be] required to find that [defendant] used, attempted to use, or
threatened to use physical force in order to find him guilty of
conspiracy”); United States v. Edmundson, 153 F.Supp.3d 857, 859
(D. Md. 2015) (finding it “undisputed that Hobbs Act Conspiracy
can
be
committed
even
without
the
use,
attempted
use,
or
threatened use of physical force against the person or property of
another”).
Therefore,
because
neither
of
the
elements
of
Hobbs
Act
conspiracy requires the conspirator to use, attempt, or threaten
- 12 -
the use of physical force, Hobbs Act conspiracy does not qualify
as a crime of violence under the elements clause of § 924(c).
Accordingly,
Defendants’
60-month
sentences
on
Count
III
for
possessing a firearm in furtherance of a crime of violence cannot
constitutionally be anchored in their conviction on Count II for
conspiracy to commit Hobbs Act robbery.
C.
Defendants’ Motions Are Procedurally Defaulted
One final issue remains to adjudicate before the Court can
find Defendants entitled to the relief they seek:
§ 2255 Motions are procedurally defaulted.
that
Defendants
Pullia
and
Scalise,
by
whether their
The Government argues
pleading
guilty
to
conspiracy to commit Hobbs Act robbery, waived any challenge about
whether that crime constitutes a “crime of violence” within the
meaning of § 924(c)(3).
an
appeal,
the
In addition, because no Defendant filed
Government
claims
that
any
vagueness
presented here on collateral review were waived.
arguments
Finally, the
Government urges that all three Motions are untimely – Pullia’s
and Scalise’s because the Supreme Court has not actually ruled on
§ 924(c)(3) (only the residual clause of the ACCA), and Rachel’s
because it was filed more than one year after Johnson came down.
The Court takes these arguments in turn.
- 13 -
1.
Pullia and Scalise Waived Their
Arguments by Pleading Guilty
The Government rightly maintains that Pullia and Scalise may
not pursue collateral relief here because they pleaded guilty to
Counts II and III.
The Supreme Court has consistently rejected
the contention that a constitutional flaw revealed by post-plea
developments permits a court to set aside the plea.
For example,
in Brady v. United States, 397 U.S. 742 (1970), the defendant had
been
charged
with
capital
kidnapping
and
pleaded
guilty
lesser charge to avoid the risk of the death penalty.
to
a
Years after
he entered that plea, the Supreme Court decided United States v.
Jackson, 390 U.S. 570 (1968), which held that the Constitution
precluded
the
death-penalty
system
established
by
the
statute
under which Brady had been charged. The Court held, however, that
“a voluntary plea of guilty intelligently made in the light of the
then
applicable
judicial
law
decisions
does
not
indicate
become
that
the
premise.”
Brady, 397 U.S. at 757.
ordinarily
confined
to
counseled and voluntary.
whether
the
vulnerable
plea
because
rested
on
a
later
faulty
Instead, “the inquiry is
underlying
plea
was
both
If the answer is in the affirmative then
the conviction and the plea, as a general rule, foreclose the
collateral
attack”
jurisdiction.
unless
the
Court
lacked
subject-matter
United States v. Broce, 488 U.S. 563, 569 (1989).
- 14 -
The Seventh Circuit has recently reiterated the salience of
this
feature
of
Brady
to
§ 2255
motions
entered into before Johnson and Cardena.
arising
out
of
pleas
See, United States v.
Wheeler, 857 F.3d 742, 744 (7th Cir. 2017) (“Wheeler waived his
position by pleading guilty – and to make the waiver doubly clear
he acknowledged in writing that the plea surrendered any argument
that could have been raised in a pretrial motion. Wheeler now
contends that the indictment did not charge a § 924(c)(1) offense
because
attempted
violence.’
Hobbs
Act
robbery
is
not
ever
a
‘crime
of
Such an argument not only could have been presented by
pretrial motion but also had to be so presented under FED. R. CRIM.
P.
12(b)(3)(B)(v),
which
provides
that
‘failure
to
state
an
offense’ is the sort of contention that ‘must’ be raised before
trial.
That Cardena post-dates the guilty plea does not matter.”)
(emphasis in original); Davila, 843 F.3d at 731-32 (holding that
defendant, who pleaded guilty to conspiring to commit Hobbs Act
robbery and to a § 924(c)(1)(A) violation, could not use Johnson
and Cardena to reopen the subject and ask a court to vacate, set
aside, or correct his sentence).
Pullia and Scalise seek to do precisely what the Wheeler and
Davila courts proscribed for defendants who have pleaded guilty.
They do not contend – probably because the argument would fail that the Court lacked subject-matter jurisdiction as a result of
- 15 -
the § 924(c) constitutional problem.
See, e.g., Davila, 843 F.3d
at 732 (“The district court had subject-matter jurisdiction under
18 U.S.C. § 3231.
This leads Davila to contend that, whenever a
constitutional problem crops up in a case that has been resolved
by
a
guilty
plea,
the
district
jurisdiction despite § 3231.
Broce,
for
collateral
violated
the
Court
relief
the
there
even
Double
on
court
retroactively
loses
That position runs headlong into
held
the
Jeopardy
that
guilty
assumption
Clause
(internal citation omitted).
a
of
that
the
plea
the
Fifth
prevents
conviction
Amendment.”)
Instead, Defendants dredge up only
the “statutory issue” of whether Hobbs Act conspiracy falls within
the elements clause.
Wheeler, 857 F.3d at 745 (“Whether attempted
Hobbs Act robbery satisfies the elements clause in § 924(c) is a
statutory
issue.
For
the
reasons
given
in
Davila,
an
unconditional guilty plea waives any contention that an indictment
fails to state an offense.”).
agreements
“conferred
Specifically,
by
What is more, both Defendants’ plea
benefits.”
pleading
guilty,
Davila,
both
843
were
F.3d
at
guaranteed
732.
not
to
receive a total sentence (on all four counts) of greater than 117
months; if they were sentenced above this range, then they would
not have been bound by their plea agreements.
particularly
salient
where
a
defendant
is
This benefit is
faced
with
a
total
maximum sentence of life imprisonment, as Pullia and Scalise were.
- 16 -
(Pl. Agr. ¶ 7(f).)
right
not
to
be
Because they do not claim a constitutional
indicted
or
that
their
guilty
pleas
were
uncounseled or involuntary, their § 2255 Motions under Johnson are
procedurally defaulted.
As such, they have waived their challenge
that Hobbs Act conspiracy is not a crime of violence within the
meaning of § 924(c)’s elements clause.
Clearing
away
some
flotsam,
the
Court
notes
that
the
exception to Pullia’s and Scalise’s § 2255 waiver in their plea
agreements for changes in the law that the Supreme Court has made
retroactive, does not authorize their challenge here.
(Query also
whether
the
the
terms
of
a
plea
agreement
can
suspend
waiver
recognized in Brady, Broce, Davila, and Wheeler that occurs by
operation of law when a defendant pleads guilty.)
Johnson speaks
only to the unconstitutionality of the ACCA’s residual clause, 18
U.S.C. § 924(e) - and Welch made only that precise change in the
law retroactive on collateral review.
See, e.g., Wheeler, 857
F.3d at 745 (“Neither Cardena nor Johnson has anything to do with
the
elements
Supreme
Court
clauses
has
in
not
§
yet
924(c)
and
adopted
or
other
statutes.”).
opined
on
the
The
Seventh
Circuit’s extension of the Johnson rationale beyond the residual
clause of the ACCA to the similar residual clauses in 18 U.S.C.
§ 16(b) and 18 U.S.C. § 924(c). (It has heard oral argument in
Sessions v. Dimaya, No. 15-1498 (U.S.), concerning whether the
- 17 -
residual clause of 18 U.S.C. § 16(b) is unconstitutionally vague
in
light
of
Johnson,
but
Defendants
opposed
the
Government’s
request to stay consideration of their § 2255 Motions pending the
decision in Dimaya.)
On the current state of the law, therefore,
the exception in the plea agreements’ § 2255 waiver clause does
not sweep in Defendants’ Johnson-based challenge, as the Supreme
Court
has
retroactive
only
made
on
the
collateral
right
newly
review
–
recognized
and
not
in
other
Johnson
circuits’
extension of Johnson.
In
sum,
by
unconditionally
pleading
guilty,
Pullia
and
Scalise waived their rights to launch collateral attacks on their
Count III sentences based on the statutory issue of whether Hobbs
Act conspiracy satisfies the elements clause of § 924(c).
2.
Rachel’s Failure to Raise His Argument
on Appeal Is Excused
In addition, the Government claims that Defendants’ Motions
are
procedurally
defaulted
because
Johnson-based arguments on appeal.
they
did
not
raise
their
(In fact, as noted previously,
none of the Defendants took a direct appeal.) Because the § 2255
Motions of Pullia and Scalise are procedurally defaulted by dint
of their unconditional guilty pleas, the Court need only analyze
the Government’s remaining arguments as to Rachel.
- 18 -
Although
argument
appeal,
on
a
defendant
collateral
see,
is
generally
review
Sanchez-Llamas
barred
from
was
not
raised
Oregon,
548
U.S.
that
v.
raising
an
on
direct
331,
350-51
(2006), a court may excuse procedural default if the defendants
demonstrates “(1) both good cause for his failure to raise the
claims on direct appeal and actual prejudice from the failure to
raise those claims, or (2) that the district court’s refusal to
consider the claims would lead to a fundamental miscarriage of
justice.”
McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir.
1996) (citations omitted).
a.
Good Cause
Invoking Reed v. Ross, 468 U.S. 1 (1984), Rachel argues that
he had good cause for not making his argument on direct appeal
because a claim based on Johnson was non-existent until 2015 –
approximately three years after he was sentenced. In Reed, the
Supreme Court held that good cause obtains when “a constitutional
claim is so novel that its legal basis is not reasonably available
to
counsel.”
overrules
one
Id.
of
at
16.
its
When
precedents
the
Supreme
and
Court
applies
that
explicitly
decision
retroactively, as it did in Johnson and Welch, “there will almost
certainly have been no reasonable basis upon which an attorney
previously could have urged” the newly adopted position. Id. at
17.
(The Court acknowledges that the Seventh Circuit has called
- 19 -
into question Reed’s validity after Teague v. Lane, 489 U.S. 288
(1989).
See, e.g., Prihoda v. McCaughty, 910 F.2d 1379, 1386 (7th
Cir. 1990).
procedure
and
However, Teague concerned constitutional rules of
“does
not
undermine
the
authority
of
Reed
with
respect to a substantive rule such as that announced in Johnson.”
Deering, 2016 WL 7178461, at *3 n.5.)
Johnson reiterated the Supreme Court’s history of rejecting
vagueness
challenges
to
the
ACCA’s
residual
clause.
See,
135
S.Ct. at 2562-63.
And the Cardena opinion leaves no doubt that
Johnson’s
of
analysis
§
924(e)
paved
the
way
for
the
Seventh
Circuit to find the residual clause of § 924(c) unconstitutionally
vague.
Thus, Rachel’s position that he had no incentive to press
his Johnson-based argument on appeal from his 2012 conviction and
sentencing passes good cause muster. See, e.g., Stanley v. United
States, 827 F.3d 562, 565 (7th Cir. 2016) (“Perhaps a prisoner
could argue that he decided not to press an argument about the
elements
clause
at
sentencing,
or
on
appeal,
when
the
only
consequence would have been to move a conviction from the elements
clause to the residual clause.
Then it would be possible to see
some relation between Johnson and a contention that the conviction
has been misclassified, for the line of argument could have been
pointless before Johnson but dispositive afterward.”).
- 20 -
Accordingly, Rachel has established good cause for declining
to pursue the argument he now advances on direct appeal.
b.
Rachel
received
an
Actual Prejudice
additional
five-year
sentence
for
possessing a firearm in furtherance of a crime of violence when
the Court determined that Hobbs Act conspiracy constitutes a crime
of violence within the meaning of § 924(c).
Indeed, Rachel by now
has already served his 41-month sentence on Counts I and II, and
he has begun serving his 60-month sentence on Count III.
amounts to “obvious” prejudice.
*
This
Deering, 2016 WL 7178461, at *4.
*
*
As such, Rachel’s appellate procedural default is excused.
3.
Rachel’s Motion Is Untimely
Although a § 2255 motion must generally be filed within one
year
after
a
defendant’s
conviction
becomes
final,
28
U.S.C.
§ 2255(f)(1), it may nonetheless be properly filed within one year
after a right is newly recognized by the Supreme Court, if that
right
has
been
made
retroactively
applicable
collateral review. 28 U.S.C. § 2255(f)(3).
to
cases
on
The parties do not
dispute that Rachel filed the instant motion several years after
his conviction was final, but Rachel claims that his Motion is
timely in view of the new right recognized in Johnson and made
retroactive to cases on collateral review in Welch.
- 21 -
However, the
Government
because
stresses
he
did
that
not
Rachel’s
file
it
§
2255
within
one
Motion
year
of
is
untimely
the
Johnson
decision.
The
untimeliness
malaise
here
is
easily
diagnosed
yet,
frustratingly, requires the Court to deny Rachel’s Motion for now
despite its substantive merits.
precedent
cabining
the
right
Notwithstanding Seventh Circuit
established
by
Johnson
to
the
specific residual clause of the ACCA, Rachel claims that Johnson
established his right not to be convicted under § 924(c) based on
an underlying offense of Hobbs Act conspiracy.
But if that is
true, then his Motion is untimely by the very terms enunciated in
§ 2255(f)(3) because he filed it on July 28, 2016 - approximately
thirteen months after the June 26, 2015 decision in Johnson.
If,
on the other hand, we heed the Seventh Circuit’s pronouncements on
the scope of Johnson, then either Vivas-Ceja or Cardena creates
the right Rachel seeks to vindicate.
Although Rachel filed his
Motion within one year of those decisions, on this reading, alas,
§ 2255(f)(3) by its terms would still not apply because it extends
the
statute
recognizes
of
a
limitations
right.
In
only
sum,
when
no
the
reading
Supreme
of
Court
Rachel’s
newly
Motion
supports a timeliness finding under § 2255(f)(3).
However,
elements
because
clause,
the
Hobbs
Court
Act
conspiracy
denies
- 22 -
falls
Rachel’s
outside
Motion
the
without
prejudice.
He may bring a timely successive § 2255 motion should
the Supreme Court in Dimaya or a subsequent case hold that the
“crime of violence” provision in § 924(c) is unconstitutionally
vague
and
then
make
that
rule
applicable
retroactively
on
2255
of
collateral review.
IV.
For
Defendants
the
reasons
Pullia
CONCLUSION
stated
herein,
and
Scalise
are
the
§
denied
with
Motions
prejudice.
Defendant Rachel’s § 2255 Motion is denied without prejudice.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
November 8, 2017
- 23 -
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