Arnold v. USA

Filing 16

ORDER GRANTING 13 Motion to Withdraw as Attorney Federal Public Defender/Ethan Skaggs; and SHOWING CAUSE re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by John E. Arnold. Signed by Judge David R. Herndon on 8/21/2017. (kmb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN E. ARNOLD
Petitioner,
v.

No. 3:15-cv-00881-DRH

UNITED STATES OF AMERICA
Respondent.
ORDER
HERNDON, District Judge:
Before the Court is Assistant Federal Public Defender Ethan Skaggs’
(“FPD”) Motion to Withdraw as counsel of record for petitioner John Arnold
(“Arnold”) in the above-styled matter (Doc. 13). Based on the following the Motion
to Withdraw is GRANTED; Arnold is DIRECTED to file a response SHOWING
CAUSE as to why the Court should not deny his 28 U.S.C. § 2255 Motion to
Vacate, Set Aside or Correct Sentence (Doc. 1) and dismiss his case.
DISCUSSION
On August 10, 2015, Arnold filed a motion to vacate his sentence pursuant
to section 2255 (Doc. 1).

Specifically, he challenges his status as a career

offender based upon the holding in Johnson v. United States, 135 S. Ct. 2251
(2015). In Johnson, the United States Supreme Court found the residual clause
in the Armed Career Criminal Act (“ACCA”) to be unconstitutionally vague under
the Sixth Amendment’s Due Process Clause. See id. As a result, Arnold argues
that because the residual clause found in U.S.S.G. § 4B1.2 is substantially

identical to the one found in the ACCA, it correspondingly is unconstitutionally
vague (Doc. 1). In accordance with this District’s Administrative Order No. 176,
the Court appointed the FPD to represent Arnold (Doc. 5).
Due to a circuit split as to whether the sentencing guidelines were subject to
vagueness challenges the Supreme Court granted certiorari in Beckles v. United
States, 137 S. Ct. 886 (2017), and held that Johnson-reasoning does not extend
to section 4B1.2’s residual clause; and the advisory sentencing guidelines are
ultimately not subject to vagueness challenges under the Due Process Clause. See
Beckles. Subsequently, the government filed a Notice Regarding Supplemental
Authority arguing that petitioner’s section 2255 motion should be denied in light
of Beckles (Doc. 11). More specifically, Arnold’s section 2255 petition should be
dismissed given that there was no cognizable error in his sentence because the
petition rests wholly on the premise that the advisory guidelines may be attacked
as unconstitutionally vague (Id.).
Shortly thereafter, the FPD filed a Motion to Withdraw (Doc. 13) arguing
that Arnold has no meritorious basis for obtaining relief premised upon Johnson
since the decision in Beckles forecloses any colorable claim (Doc. 13). Moreover,
the FPD requested to be withdrawn as attorney of record because no nonfrivolous basis for seeking relief based on Johnson is available (Id.). The Court
entered an order pursuant to district-wide procedure allowing Arnold thirty (30)
days or until July 1, 2017 to respond to the FPD’s Motion to Withdraw (Doc. 14).
The order stated, inter alia, “failure to respond within the 30-day time period will

result in the grant of the motion to withdraw” (Id.).

Petitioner has failed to

respond.
Accordingly, the Court GRANTS the Motion to Withdraw as counsel (Doc.
13).

Additionally, the Court DIRECTS Arnold—on or before September 22,

2017—to file a response SHOWING CAUSE, i.e. a valid reason, why his section
2255 petition should not be denied and his case dismissed.

The government

may—but is not required to—file any further response by the same date.
The Clerk of Court is DIRECTED to mail a copy of this Order to Arnold at
his last known address.
IT IS SO ORDERED.
Signed this 21st day of August, 2017.

Judge Herndon
2017.08.21
17:17:41 -05'00'
UNITED STATES DISTRICT JUDGE