Oman v. Cross

Filing 8

ORDER REOPENING CASE, ORDER LIFTING STAY: The Court GRANTS petitioner's Motion to Amend or Alter Judgment (Doc. 6); VACATES the order dismissing the habeas petition (Doc. 4) and the judgment (Doc. 5) in this case; and DIRECTS the Clerk to reopen this case. Signed by Judge David R. Herndon on 7/7/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JASON DOUGLAS OMAN,
No. 27604-013,
Petitioner,
vs.

Case No. 14-cv-771-DRH

JAMES CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
In an order dated March 23, 2015, this Court stayed proceedings in this
case pending a decision by the United States Supreme Court in the case Johnson
v. United States. (See Doc. 7). On June 24, 2015, in a 6-3 opinion, the high
Court held that the residual clause of the Armed Criminal Career Act is
unconstitutionally vague and, thus violates due process. 1 See Johnson v. United
States, No. 13-7120, 2015 WL 2473450 (U.S. June 26, 2015).

Now that the

Supreme Court has reached a decision, the STAY is LIFTED and the case may
proceed.

1

Petitioner’s sentence was enhanced under the career offender provision of the United States Sentencing Guidelines.
See U.S.S.G. § 4B1.2(a). Nonetheless, the Supreme Court’s holding regarding the Armed Criminal Career Act is
almost certainly applicable to the career offender guidelines. See United States v. Hampton, 675 F.3d 720, 730 (7th
Cir. 2012) (“The definition of ‘crime of violence’ in the career-offender guidelines is almost identical to the
definition of ‘violent felony’ in the ACCA; therefore, our case law interpreting the two definitions is
interchangeable.”).

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Now pending before the Court is petitioner’s Motion to Alter or Amend
Judgment (Doc. 6) from the Court’s July 29, 2014 Order (Doc. 4) dismissing his
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.

As the Court

previously discussed in its Order staying this case (Doc. 7), petitioner’s reliance
on Descamp v. United States, __ U.S. __, 133 S. Ct. 2276 (2013) is likely
misplaced since it appears that the sentencing court and the Eighth Circuit
determined that petitioner’s prior conviction for aiding and abetting third degree
robbery was a crime of violence pursuant to the residual clause of the career
offender definition under section 4B1.2(a) of the United States Sentencing
Guidelines. See United States v. Oman, 427 F.3d 1070, 1076 (8th Cir. 2005).
In affirming the sentencing court’s determination, the Eighth Circuit cited prior
Eighth Circuit cases, which have held “since burglary always creates a ‘serious
potential risk of physical injury to another,’ it qualifies as a crime of violence.”
United States v. Mohr, 407 F.3d 898, 901 (8th Cir. 2005) (quoting United States
v. Hascall, 76 F.3d 902, 905 (8th Cir.1996)).

Nonetheless, the Court is

persuaded that petitioner may be entitled to relief following the Supreme Court’s
recent decision in Johnson.
Accordingly, the Court GRANTS petitioner’s Motion to Amend or Alter
Judgment (Doc. 6); VACATES the order dismissing the habeas petition (Doc. 4)
and the judgment (Doc. 5) in this case; and DIRECTS the Clerk to reopen this
case.

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Under the circumstances, the Court concludes that petitioner’s request for
habeas relief warrants immediate attention.

Therefore, in the interest of

expediency and, most importantly, justice, it is HEREBY ORDERED that ON OR
BEFORE JULY 21, 2015 respondent shall brief the following two issues for the
Court: First, what impact, if any, does Johnson have on petitioner’s current
sentence?

And second, is the Southern District of Illinois a proper venue to

resolve petitioner’s request for relief or should this matter be transferred to the
district court where petitioner was sentenced? This preliminary order to respond
does not, of course, preclude the Government from raising any objection or
defense it may wish to present. Service upon the United States Attorney for the
Southern District of Illinois, 9 Executive Drive, Fairview Heights, Illinois 62208,
shall constitute sufficient service.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action.
IT IS SO ORDERED.
DATED: July 7, 2015

Digitally signed by
David R. Herndon
Date: 2015.07.07
12:19:12 -05'00'
__________________________________

United States District Judge

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