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, )

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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 - 5 - 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). - 7 - 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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