United States of America v. Rachel

Filing 12

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 11/8/2017. Mailed notice (cc, )

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 -