United States of America v. Dorsey
Filing
15
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 4/6/2017.(gcy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL DORSEY,
Plaintiff,
Case No. 16 C 6592
v.
Judge Harry D. Leinenweber
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
For the reasons stated herein, Petitioner Michael Dorsey’s
Motion for Relief under 28 U.S.C. § 2255 [ECF No. 1] is denied.
The Court declines to issue a Certificate of Appealability.
I.
BACKGROUND
In November 2011, Michael Dorsey (“Dorsey”) pleaded guilty
to being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g).
See, United States v. Dorsey, No. 10-CR-645,
ECF No. 41 ¶¶ 1-5 (N.D. Ill. Oct. 26, 2011).
plea,
Dorsey
robbery
in
had
six
been
convicted
separate
cases,
under
Illinois
attempted
Prior to this
law
armed
another case, and (mere) robbery in yet another.
of
armed
robbery
in
Id. ¶ 10(c).
Adding to these convictions incurred as an adult, Dorsey was
also convicted as a juvenile for armed robbery.
See, Dorsey v.
United States, No. 16-CV-6592, ECF No. 1 at 5 (Dorsey’s § 2255
Mot.) (N.D. Ill. June 23, 2016).
The Court sentenced Dorsey to 15 years of incarceration,
the minimum mandatory sentence under the Armed Career Criminal
Act (“ACCA”).
See, United States v. Dorsey, ECF No. 56.
While
a person may be punished by a term of imprisonment of up to only
10
years
under
18
U.S.C.
§ 922(g),
see,
18
U.S.C.
§ 924(a)(1)(D)(2), the ACCA increases that sentence to a minimum
of 15 years where the person has three previous convictions for
a “violent felony . . . committed on occasions different from
one another.”
18 U.S.C. § 924(e)(1).
The ACCA defines a “violent felony” in alternative ways.
Under
the
statute,
a
“violent
felony”
is
either
“any
crime
punishable by imprisonment for a term exceeding one year” or
“any act of juvenile delinquency involving the use or carrying
of
a
firearm,
punishable
adult.”
by
knife,
or
imprisonment
destructive
for
such
18 U.S.C. § 924(e)(2)(B).
device
term
if
that
would
committed
by
an
Moreover, it is necessary
that the crime or juvenile delinquency
(i)
has as an element the use, attempted use, or
threatened use of physical force against the person of
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
- 2 -
be
Id.
Part (i) of the definition qualifying an individual’s prior
offense as a violent felony is known as the elements clause.
Part
(ii),
otherwise
specifically
involves
the
conduct
last
that
piece
presents
which
a
reads,
serious
“or
potential
risk of physical injury to another,” is known as the residual
clause.
In 2015, the Supreme Court declared the residual clause
unconstitutionally vague.
S.Ct. 2551, 2563 (2015).
See, Johnson v. United States, 135
A year later, the Court announced that
its ruling from Johnson applies retroactively.
United States, 136 S.Ct. 1257, 1268 (2016).
See, Welch v.
It thus allowed
individuals who were sentenced under the residual clause of the
ACCA before the issuance of Johnson to move to correct their
sentences.
See, id.; see also, Price v. United States, 795 F.3d
731, 734-35 (7th Cir. 2015).
Dorsey brings this § 2255 petition, claiming that he is
such an individual.
He argues that, after Johnson, his prior
offenses no longer qualify as “violent felonies” under the ACCA.
As mentioned above, Dorsey has a conviction for robbery, which
is defined under Illinois law as “knowingly 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.
He also has convictions for armed robbery, meaning that he was
- 3 -
guilty of committing robbery while at least “carr[ying] on or
about his . . . person . . . a dangerous weapon.”
See, 720 ILCS
5/18-2 (defining armed robbery as robbery coupled with the use
or presence of a weapon, the least serious form of which is
given above).
Given these prior convictions, Dorsey’s sentence must stand
as is.
Moreover, since the materials in this case conclusively
show that Dorsey is entitled to no relief, the Court makes this
determination without an evidentiary hearing.
See, 28 U.S.C.
§ 2255(b); Cooper v. United States, 378 F.3d 638, 641-42 (7th
Cir. 2004).
II.
The
proper
Court
under
survives
concludes
the
Johnson
that
elements
intact.
(“Today’s
decision
remainder
of
the
does
Act’s
ANALYSIS
Dorsey’s
clause
See,
not
of
15-year
the
ACCA.
Johnson,
call
definition
into
of
sentence
135
This
S.Ct.
question
a
violent
.
clause
at
.
is
.
2563
the
felony.”);
Stanley v. United States, 827 F.3d 562, 564 (7th Cir. 2016)
(“Johnson holds that the residual clause is unconstitutionally
vague.
Johnson does not otherwise affect the operation of the
Armed Career Criminal Act.”); United States v. Smith, No. 161895, 2016 U.S. App. LEXIS 18277, at *2 (7th Cir. Oct. 7, 2016)
(“Johnson
does
not
affect
convictions
- 4 -
classified
under
the
elements
clause
of
the
.
.
.
Armed
Career
Criminal
Act.”).
Accordingly, as long as Dorsey’s criminal record contains three
convictions for acts that have “as an element the use, attempted
use, or threatened use of physical force against the person of
another,”
then
Dorsey
has
the
requisite
convictions
to
be
sentenced as a career criminal.
A.
Predicate Convictions
Dorsey’s petition for relief rests on the contention that
his
record
of
robbery,
armed
robbery,
and
attempted
armed
robbery does not include three “violent felonies” as defined by
the
elements
clause
of
the
ACCA.
This
argument
is
plainly
contrary to Seventh Circuit case law.
1.
The Seventh Circuit Treats Robbery as a Violent Felony
The
Seventh
Circuit
has
unequivocally
held
that
“a
violation of the Illinois robbery statute per se constitutes a
violent felony for purposes of [the elements clause under] 18
U.S.C. § 924(e)(2)(B).”
United States v. Dickerson, 901 F.2d
579, 584 (7th Cir. 1990); see also, United States v. Carter, 910
F.2d 1524, 1532 (7th Cir. 1990) (“It is beyond dispute that
under Illinois law, robbery is an offense that has as an element
the use or threatened use of force.”).
Dorsey concedes this but
asserts that “the Seventh Circuit must re-evaluate its precedent
in light of the Johnson case.”
ECF No. 1 at 12.
- 5 -
Not only has
the Seventh Circuit refrained from any such reevaluation, but
post Johnson, the court has reaffirmed its holding that robbery
is a qualifying offense under ACCA.
As the Seventh Circuit said a year after Johnson was handed
down,
“convictions
under
[the
Illinois
robbery]
statute
crimes of violence under the elements clause[].”
are
Smith, 2016
U.S. App. LEXIS 18277 at *2-3 (unpublished opinion).
While the
court was specifically referring to the elements clause present
in
the
Federal
counterpart
in
Sentencing
the
ACCA
Guidelines,
are
that
identical.
clause
Compare,
and
18
its
U.S.C.
§ 924(e)(2)(B)(i), with U.S.S.G. § 4B1.2(a)(1); see also, United
States
v.
elements
Duncan,
clauses
833
of
F.3d
the
751,
ACCA
754
(7th
definition
Cir.
and
2016)
the
(“The
Guideline
definition are identical, so they have been interpreted to cover
the same scope.”); United States v. Templeton, 543 F.3d 378, 380
(7th Cir. 2008) (“Section 924 - a part of the Armed Career
Criminal
Act
–
defines
‘violent
felony’
in
the
same
way
as
§4B1.2 defines ‘crime of violence’, and we interpret §4B1.2 in
the same way as §924(e).”).
to
support
its
ruling
in
Moreover, the court cited Dickerson
Smith
and
so
has
continuing validity of the case even after Johnson.
2016 U.S. App. LEXIS 18277 at *3.
- 6 -
affirmed
the
See, Smith,
Simply put, it is established
law in the Seventh Circuit that Illinois robbery is a violent
felony under the ACCA.
Since every armed robbery in Illinois is also a robbery,
armed robberies are necessarily violent felonies under the ACCA
as
well.
See,
720
ILCS
5/18-2
(defining
armed
robbery
as
robbery with additional elements); Wolf v. United States, No. 6CV-527-NJR,
2017
U.S.
Dist.
LEXIS
33064,
at
*5-6
(S.D.
Ill.
Mar. 8, 2017) (“[T]he Seventh Circuit has repeatedly held that
robbery
as
defined
by
Illinois
law
is
a
crime
of
violence;
therefore logic dictates that armed robbery — which is robbery
while
armed
with
a
gun
—
is
also
a
crime
of
violence.”).
Indeed, the Seventh Circuit has treated armed robberies this way
even after the issuance of Johnson.
See, Sedgwick Johnson v.
United States, No. 16-2101, 2016 U.S. App. LEXIS 14105, at *1-2
(7th Cir. June 9, 2016) (unpublished opinion) (denying a motion
to file a successive § 2255 motion on account of the fact that
the
petitioner
“has
three
prior
convictions
in
Illinois
for
armed robbery, which qualify as crimes of violence under the
elements clause” of the Guidelines).
Due
district
to
clear
courts
in
Seventh
this
Circuit
circuit
authority
appear
to
on
have
the
issue,
uniformly
rejected petitioners’ attempts to reduce their sentences post
Johnson on the proffered ground that robbery or armed robbery is
- 7 -
not a violent felony.
For an non-exhaustive list of such cases,
see Adams v. United States, No. 16-1096, 2016 U.S. Dist. LEXIS
113699,
at
*5-6
(C.D.
Ill.
Aug.
25,
2016)
(holding
that
petitioner “is not entitled to relief under Johnson” because
both
robbery
and
armed
robbery
“continue
to
qualify
as
a
‘violent felony’ . . . under the elements clause even in the
wake of Johnson”); United States v. Carter, No. 16 C 6465, 2017
U.S. Dist. LEXIS 39972, at *8 (N.D. Ill. Mar. 14, 2017); United
States v. Charles, No. 16-cv-9160, 2017 U.S. Dist. LEXIS 36442,
at
*9
(N.D.
Ill.
Mar.
14,
2017);
Gregory
v.
United
States,
No. 16-00531-DRH, 2016 U.S. Dist. LEXIS 94492, at *5-7 (S.D.
Ill. July 20, 2016); United States v. Jones, No. 16 C 6396, 2016
U.S.
Dist.
(Shadur,
LEXIS
J.)
164876,
(rejecting
at
*5-7
(N.D.
Ill.
the
same
arguments
Nov.
here
29,
2016)
brought
Dorsey’s counsel and stating that “[w]hat Dickerson . . .
by
said
. . . continues to control today”); Mosley v. United States,
No. 6-CV-206-NJR, 2017 U.S. Dist. LEXIS 2144, at *2-3 (S.D. Ill.
Jan. 6, 2017); United States v. Saunders, No. 15 C 8587, 2016
U.S. Dist. LEXIS 54929, at *6-7 (N.D. Ill. Apr. 25, 2016); Wolf,
2017 U.S. Dist. LEXIS 33064 at *5-6; Van Sach v. United States,
No. 16 C 5530, 2017 U.S. Dist. LEXIS 36591, at *11-15 (N.D. Ill.
Mar. 14, 2017) (Castillo, C.J.) (rejecting the same arguments
brought by Dorsey’s counsel, who was also counsel in Van Sach,
- 8 -
and
concluding
that
“Van
Sach’s
Illinois
armed
robbery
conviction falls under the elements clause of the ACCA”).
As
for attempted armed robbery, the Court’s research uncovered only
one case in which a petitioner similarly situated to Dorsey had
such
a
conviction.
petitioner’s
contention
The
judge
that
in
this
“violent felony” for ACCA purposes.
that
case
predicate
rejected
crime
was
the
not
a
See, Shaw v. United States,
No. 16-cv-315-bbc, 2016 U.S. Dist. LEXIS 97893, at *2-4 (W.D.
Wis. July 27, 2016); see also, Rodgers v. United States, No. 16cv-0622-MJR, 2017 U.S. Dist. LEXIS 38084, at *14-16 (S.D. Ill.
Mar. 16, 2017) (examining current Seventh Circuit case law on
attempted robbery and its relation to the ACCA).
In
sum,
the
appellate
and
the
district
courts
in
this
circuit treat robbery, armed robbery, and, to a less certain
extent, attempted armed robbery as predicate crimes that subject
a felon to the ACCA’s sentencing enhancement.
2.
Dorsey’s Arguments to the Contrary are Unpersuasive
Against this overwhelming weight of Seventh Circuit case
law, Dorsey has little to say.
swipes at the authorities.
Instead, he makes three sidelong
First, he says that courts outside
of this circuit have come to a different conclusion.
See, ECF
No. 1 at 12-13 (citing United States v. Castro-Vazquez, 802 F.3d
28 (1st Cir. 2015); United States v. Gardner, 823 F.3d 793 (4th
- 9 -
Cir. 2016); and United States v. Parnell, 818 F.3d 974 (9th Cir.
2016)).
This may be so, but the argument does not advance Dorsey’s
position.
more
For Dorsey to succeed, this Court would have to give
weight
to
these
three
out-of-circuit
numerous in-circuit rulings.
opinions
than
the
This is an especially untenable
position given that the in-circuit cases addressed the specific
Illinois statutes under which Dorsey was convicted, while the
out-of-circuit opinions did not.
at
37-38
at
(dealing
with
See, Castro-Vazquez, 802 F.3d
Puerto
Rico’s
robbery
statute);
Gardner, 823 F.3d at 803-04 (looking at North Carolina’s common
law
robbery);
Parnell,
818
F.3d
at
978-92
(examining
Massachusetts law on armed robbery).
In
addition,
Dorsey’s
counsel’s
citation
of
these
cases has been rejected as inapposite to Illinois law.
very
See,
Jones, 2016 U.S. Dist. LEXIS 164876 at *4-7 (calling the cited
cases “entirely beside the mark”).
Out of the three opinions
that Dorsey relies on, Parnell is perhaps the strongest.
Yet,
the Ninth Circuit in Parnell admitted that, in coming to the
conclusion that armed robbery under Massachusetts law is not a
“violent
felony,”
it
was
interpreting
Massachusetts
law
differently than how the First Circuit has interpreted that law.
See, Parnell, 818 F.3d at 981 (distinguishing its holding from
- 10 -
United States v. Luna, 649 F.3d 91 (1st Cir. 2011)).
Moreover,
a
that
district
court
Massachusetts
in
the
statute
Ninth
Circuit
examined
in
has
decided
Parnell
different from Illinois robbery statute.
is
the
materially
See, United States v.
Amos, No. CV 16-1324-PHX-SRB (MHB), 2017 U.S. Dist. LEXIS 8873,
at
*10-11
(D.
Ariz.
Jan.
23,
2017)
(“The
minimal
force
requirement set forth in the Massachusetts armed robbery statute
illustrated in Parnell is far less than the strictures of the
Illinois robbery statute at issue. . . .”).
Parnell
in
a
way
that
this
Court
is
Although bound by
not,
the
Amos
court
nonetheless found that “Illinois armed robbery is a crime of
violence.”
Id.
declines
elevate
to
at
*10.
For
Dorsey’s
all
cited
these
reasons,
authorities
the
above
Court
Seventh
Circuit case law.
Second, Dorsey argues that a Supreme Court case compels
this Court to say that Seventh Circuit precedent is wrong.
The
case is Curtis Johnson v. United States, 559 U.S. 133 (2010).
Before delving into Curtis Johnson, however, the Court notes
that
it
does
Circuit.
If
not
have
Dorsey
the
thinks
power
that
to
contravene
Curtis
Johnson
the
Seventh
obliges
the
Seventh Circuit to overturn Dickerson and its line of cases,
then Dorsey must swallow an adverse ruling from this Court and
take up the issue with the court of appeals.
- 11 -
See, Van Sach,
2017
U.S.
Dist.
LEXIS
36591
at
*13-14
(“Dickerson
remains
binding precedent in this Circuit, and this Court must follow it
unless it is overturned by the Seventh Circuit.”).
Moreover, the Court disagrees that Curtis Johnson compels
any such result.
Curtis Johnson was decided in 2010, three
years before Dorsey was sentenced and five years before Johnson
issued.
Curtis
Given the timing, it is difficult to understand how
Johnson
only
unconstitutional.
now
makes
Dorsey’s
Furthermore,
at
no
sentence
point
enhancement
during
the
intervening years since the issuance of the case did the Seventh
Circuit indicate that it needed to retool its prior holdings.
In fact, on the occasions where the court engaged with Curtis
Johnson, it held that convictions under robbery statutes like
Illinois’ are “violent felonies” under the ACCA.
According to the Seventh Circuit, “Curtis Johnson teaches
that
the
violent
force
that
must
be
feared
for
robbery
by
intimidation to be a crime of violence has a low threshold — a
fear of a slap in the face is enough.”
United States v. Armour,
840 F.3d 904, 909 (7th Cir. 2016) (analyzing a federal bank
robbery statute).
two prongs.
Recall that the Illinois robbery statute has
Illinois criminalizes an act as robbery when an
individual takes property from the person of another “by the use
of force” or “by threatening the imminent use of force.”
- 12 -
720
ILCS 5/18-1.
As the Court cannot conceive of a kind of force
threatened by a robber that would be strictly less than “a slap
in the face,” it concludes that Illinois robbery, in consonance
with Curtis Johnson, constitutes a violent crime.
In fact, the second prong of the Illinois robbery statute
is like that of Indiana, which requires taking property from
another person while putting that person in fear.
833 F.3d at 754.
See, Duncan,
Relying on Curtis Johnson, the Seventh Circuit
found that, because the fear that the Indiana statute speaks of
is fear of bodily harm, “[a] conviction for robbery under the
Indiana statute qualifies under the still-valid elements clause
of the ACCA definition of violent felony.”
Id. at 752, 754-58.
Thus, unless “threatening the imminent use of force” does not
create fear of bodily harm – a mental contortion that Dorsey has
not argued for – robbery under Illinois law must qualify as a
violent felony under the elements clause of the ACCA as well.
Third, Dorsey asserts that even if he could be subject to a
sentence enhancement under the elements clause, the burden is on
the Government to show that he was, in fact, sentenced under
that clause and not the now-unconstitutional residual clause.
Absent
such
a
showing
by
the
sentence is unconstitutional.
for this proposition.
Government,
says
Dorsey,
his
He does not cite any authority
His counsel likewise failed to do so in
- 13 -
front of Chief Judge Castillo, and the Chief Judge rejected the
argument.
See, Van Sach, 2017 U.S. Dist. LEXIS 36591 at *4 n.4
(“The question before this Court is whether [the petitioner’s]
sentence should be invalidated under 28 U.S.C. § 2255.
If he
has sufficient predicates to qualify as an armed career criminal
notwithstanding Johnson, then his sentence is proper.”).
Dorsey does cite two cases to support a tangential point.
First, he relies on Kirkland v. United States, 687 F.3d 878, 889
(7th Cir. 2012), for the proposition that the Government bears
the burden to establish a sentence enhancement under the ACCA.
Second, he leans on United States v. Davis, 16 F.3d 212 (7th
Cir. 1994), generally to make the point that “[t]he residual
clause functioned as a ‘catch-all.’”
ECF No. 1 at 16.
The
citations, however, offer no support for what Dorsey actually
needs to show:
why the Government should not prevail if it now
establishes that Dorsey’s sentence is proper under the elements
clause of the ACCA.
3.
Ergo, Dorsey’s last pass falls short.
Dorsey Thus Has the Predicate Convictions
to be Sentenced as a Career Criminal
Because Dorsey has not succeeded in moving the needle from
clear
Seventh
robberies,
and
Circuit
case
law
(likely)
attempted
treating
armed
robberies,
robberies
as
armed
violent
felonies under the ACCA, the only question left is whether he
- 14 -
has
three
convictions
for
such
felonies.
Dorsey
does
not
dispute that he has one robbery conviction, (at least) two armed
robbery convictions, and an attempted armed robbery conviction.
If a combination of any of these sums up to three qualifying
offenses under the ACCA, then Dorsey is a career criminal whose
sentence must stand.
The Court considers the convictions one by one.
is
that
for
robbery.
To
borrow
from
Judge
First up
Hamilton,
this
Court’s conclusion that Illinois “robbery is a violent felony
might seem about as interesting as a prediction that the sun
will rise in the east tomorrow.”
Duncan, 833 F.3d at 752.
For
all the reasons detailed above, the Court can offer nothing more
interesting:
Dorsey’s
conviction
for
Illinois
robbery
is
a
conviction for a violent felony under the ACCA.
As
for
the
armed
robbery
convictions,
one
of
these
convictions is actually a conviction in six separate cases.
If
these
on
convictions
reflect
armed
robberies
“committed
occasions different from one another,” as required by 18 U.S.C.
§ 924(e)(1),
then
Dorsey
has
based on these cases alone.
six
violent
felony
convictions
However, given that the Government
has not shown that these convictions indeed are for different
armed
robberies,
the
Court
assumes
that
they
were
for
armed
robberies committed on the same occasion and so treats them as
- 15 -
only one ACCA qualifying conviction.
892 (“[T]he
prior
government
convictions
for
must
prove
violent
See, Kirkland, 687 F.3d
both
the
felonies
existence
and
that
convictions occurred on different occasions.”).
of
the
the
prior
Even so, Dorsey
is still down two strikes out of three.
For
the
third
qualifying
offense,
Dorsey
has
the
armed
robbery conviction incurred as a minor and the attempted armed
conviction
minority
(as
an
status
conviction.
somehow
Dorsey
does
disqualifies
not
argue
the
that
armed
his
robbery
Indeed, it seems that he cannot in good faith make
such an argument.
felony
adult).
This is because the ACCA encompasses not only
convictions
as
adults
but
also
“any
act
of
juvenile
delinquency involving the use or carrying of a firearm, knife,
or destructive device that would be punishable by imprisonment
for
such
term
if
committed
by
an
adult.”
18
U.S.C.
§ 924(e)(2)(B).
In its least serious form, armed robbery under Illinois law
requires the individual to have “carrie[d] on or about his or
her person, or is otherwise armed with a dangerous weapon.”
720
ILCS 5/18-2(a)(1); see also, Armour, 840 F.3d at 908 (“[W]e must
presume the conviction rested on the least serious acts that
could satisfy the statute.”).
Moreover, Illinois punishes an
armed robber with imprisonment of at least six years.
- 16 -
See, 720
ILCS 5/18-2(b).
Accordingly, Dorsey’s juvenile conviction for
armed robbery is an “act of juvenile delinquency involving the
use or carrying of a . . . destructive device that would be
punishable by imprisonment for such term [exceeding one year] if
committed by an adult.”
18 U.S.C. § 924(e)(2)(B).
Dorsey thus
has three qualifying convictions.
In fact, he may have four.
law
is
thinner
on
the
issue,
Although Seventh Circuit case
attempted
Illinois law is likely a violent felony.
armed
robbery
under
See, United States v.
Watson-El, 376 F. App’x 605, 608 (7th Cir. 2010) (unpublished
opinion) (“[R]obbery and attempted robbery under Illinois law
are violent felonies.”); United States v. Granados-Marin, 83 F.
App’x 834, 837 (7th Cir. 2003) (unpublished opinion); Davis, 16
F.3d at 218 (“An examination of Illinois caselaw . . . makes
clear that a defendant must come within ‘dangerous proximity to
success’ to be convicted under the attempt statute.”) (citing
People v. Terrell, 459 N.E.2d 1337, 1341 (Ill. App. 1984)).
But
see, Morris v. United States, 827 F.3d 696, 697-98 (7th Cir.
2016) (allowing a criminal to file a successive § 2255 petition
when he has an attempted armed robbery conviction).
But see,
id. at 698-99 (Hamilton, J., concurring) (explaining that the
decision to grant a successive motion was due to time pressure
and further stating that “I am skeptical about the applicant’s
- 17 -
prospects
for
relief,”
which
hinge
on
his
showing
that
the
attempted armed robbery conviction is not a “violent felony”
under the ACCA).
In
sum,
convictions
Dorsey
qualify
is
as
clause of the ACCA.
a
career
violent
criminal
felonies
whose
under
predicate
the
elements
By the terms of the statute, the Court
could not have sentence him to anything less than 15 years and
it cannot now modify his sentence.
B.
The
Court
Certificate of Appealability
also
cannot
grant
Certificate of Appealability.
Dorsey’s
request
for
a
Such a certificate is authorized
under 28 U.S.C. § 2253(c) only if Dorsey “has made a substantial
showing of the denial of a constitutional right.”
This standard
is met “when reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved
in a different manner.”
v.
McDaniel,
529
marks omitted).
U.
S.
Welch, 136 S.Ct. at 1263 (quoting Slack
473,
484
(2000))
(internal
quotation
Although one might hold the view that jurists
(and even reasonable ones) could debate any matter that a client
or prospect of tenure spurs them to do, the Court thinks that
few neutral practitioners reading the Seventh Circuit case law
would have granted Dorsey’s petition.
Certainly, none of the
district courts whose opinions were examined in this Memorandum
- 18 -
has done so.
The Court therefore declines to issue such a
certificate.
III.
CONCLUSION
For the reasons stated herein, Dorsey’s § 2255 petition
[ECF No. 1] is denied.
No Certificate of Appealability shall
issue.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: April 6, 2017
- 19 -
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