Wilson v. USA
Filing
20
ORDER: For the reasons set forth in the attached Memorandum and Order, Petitioner Wilson's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1 ) is DENIED and his case is DISMISSED with prejudice. The Clerk of the Court is DIRECTED to enter judgment accordingly. Further, no certificate of appealability shall issue. Signed by Chief Judge Michael J. Reagan on 3/21/17. (rah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TRAVIS L. WILSON,
Petitioner,
v.
UNITED STATES,
Respondent.
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Case No. 15-cv-1086-MJR
MEMORANDUM AND ORDER
REAGAN, Chief Judge:
I.
Introduction
This matter is now before the Court on Petitioner Travis Wilson’s motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). 1
The
Government opposes Wilson’s Petition arguing that the cases he seeks to rely upon are
not retroactively applicable to his sentence, and even if the cases were retroactive, they
do not apply to the precise factors that led to his enhanced sentence (Doc. 13). The
Government reserves argument on Wilson’s appeal waiver in his plea agreement (Doc.
13 at 3). Appointed counsel for Wilson replied to the Government’s response, agreeing
with the Government’s interpretation that Petitioner Wilson was not eligible for relief
(Doc. 15). Petitioner Wilson subsequently filed his own reply brief arguing that he was
further entitled to relief due to changes in controlling precedent that had occurred from
1
This is Petitioner Wilson’s first habeas corpus petition.
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the time of the Government and his Counsel’s filings and the date of his latest brief
(Doc. 19). The matter is now before the Court for a decision. For the reasons set forth
herein, the Court finds that Petitioner Wilson is not entitled to the relief he seeks, nor
does this case warrant an evidentiary hearing.
II.
Facts
Pursuant to a plea agreement, Wilson pled guilty to a single-count indictment for
possession with the intent to distribute methamphetamine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(c). (CM/ECF, S.D. Ill., Case No. 13-CR-30036-MJR, Doc. 1). Wilson’s
plea agreement contained an appeal waiver for direct and collateral appeals (See Id.
Doc. 43). Following a presentence investigation and an opportunity for counsel to
respond, Wilson was committed to the custody of the Bureau of Prisons for a term of
180 months, to be followed by five years of supervised release (See id. Doc. 55).
Wilson lodged a direct appeal of his conviction and sentence, despite his appeal
waiver. (See id. Doc. 59). His original counsel filed an Anders brief with the Seventh
Circuit seeking to withdraw because the waiver barred the issues Wilson wished to
raise (See id. Doc. 71). Wilson was given an opportunity to respond to the Anders brief,
but did not do so. (Id.). Wilson’s counsel informed the Seventh Circuit that the only
grounds for his wish to appeal was to challenge his sentence—a challenge strictly
foreclosed by his appeal waiver. Accordingly, the Seventh Circuit granted counsel’s
Anders motion and dismissed the appeal. (Id.).
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Wilson did not file a petition for habeas corpus within a year of his conviction
and sentence becoming final, as is typically required by § 2255(f). Instead, he waited
until October 2, 2015, to file his § 2255 petition, in reliance on “a supreme court decision
in 2015 that career criminal guidelines are unconstitutional and void for vagueness, and
it is applicable to the residual clause”. (CM/ECF, S.D. Ill., Case No. 15-1086-MJR, Doc. 1
at 5). Unquestionably, his Petition was filed within a year of any 2015 Supreme Court
decision.
In his Petition, Wilson contends that his trial counsel was ineffective for failing to
challenge the finding that he was a career criminal. (Doc. 1 at 6). Additionally, Wilson
contends that his due process rights were violated because the sentencing judge did not
follow the joint sentencing recommendation from the Government, and instead
departed upward based on the career criminal designation. (Id.).
The Government filed an extensive brief in opposition to Wilson’s Petition (Doc.
13). The Government reserved reliance on the appeal waiver, and instead argued that
Petitioner Wilson had no meritorious substantive grounds for relief because his trial
counsel was not ineffective for failing to preserve a due process challenge to the
sentencing guidelines. Additionally, the Government argued that subsequent changes
in the law regarding armed career criminal statutes do not cross apply to the sentencing
guidelines, or even if they do, the changes are procedural in nature and thus are not
retroactively applicable. Though the Government acknowledges a variety of changes in
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its own position of the constitutionality of various sentencing provisions and statutes, it
argued that all of the recent changes have no net effect on Petitioner’s sentence.
Pursuant to a Local Administrative Order 176, the Court appointed a Federal
Public Defender to assess the potential career criminal issues with Petitioner’s sentence.
Counsel filed a reply to the Government’s response. (Doc. 15). Counsel averred that he
did not believe Petitioner was entitled to relief because two of the prior convictions
used to designate him as a career offender did not involve the residual clause—the
portion of a sentencing statute found invalid by the Supreme Court. (Id. at 3-5). As a
result, Counsel opined that Petitioner was not eligible for relief on his petition. (Id.).
In September 2016, Petitioner filed a pro se reply (Doc. 19) to the Government’s
Response (Doc. 13). In his reply, Petitioner elaborated upon his initial arguments and
sought to supplement those arguments by reference to changes in Seventh Circuit
precedent. (Doc. 19). He argued that he should not have been classified as a career
criminal, and that he deserves a resentencing. (Id.).
III.
Legal Analysis
Typically, a Section 2255 petition must be lodged within one year of the
petitioner’s conviction and sentence becoming final. 28 U.S.C. § 2255(f)(1). However,
there are a number of exceptions, such as, Section 2255(f)(3) allowing for an extended
one year period to file from “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by the
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Supreme Court and made retroactively applicable to cases on collateral review.” In
addition to the one year limitations period for filing a petition, there is also a standard
requirement that in order to bring a constitutional claim on collateral appeal, the
petitioner must also have raised that claim on direct appeal. See Massaro v. United
States, 538 U.S. 500, 504 (2003). Despite this general requirement, defendants are not
required to raise ineffective assistance of counsel claims on direct appeal in order to
preserve them for collateral appeal purposes. Id. Additionally, this requirement may
be excused if the petitioner can demonstrate good cause for the failure to raise the
claims on direct appeal and actual prejudice from the failure to raise those claims; or
that the district court’s refusal to consider the claims would lead to a fundamental
miscarriage of justice.
See e.g. Bousley v. United States, 523 U.S. 614, 622 (1998);
Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000).
As for ineffective assistance of counsel claims, in order to prevail on such a claim
on collateral review, a petitioner must establish that: “(1) his counsel’s performance fell
below an objective standard of reasonableness; and, (2) the deficient performance so
prejudiced his defense that it deprived him of a fair trial.” Fountain, 211 F.3d at 434,
quoting Strickland v. Washington, 466 U.S. 668, 688-94 (1984).
Specifically in the
context of a claim that counsel was ineffective during plea negotiations, a petitioner
must show that “counsel’s representation fell below an objective standard of
reasonableness’ when measured against’ prevailing professional norms.’” Gaylord v.
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United States, 829 F.3d 500, 506 (7th Cir. 2016). Competent counsel will “attempt to
learn all of the facts of the case, make an estimate of a likely sentence, and communicate
the results of that analysis before allowing his client to plead guilty.” Id. The petitioner
must also show that absent counsel’s deficient performance, there is a reasonable
likelihood that he would not have pleaded guilty, and would have instead gone to trial.
Id. Counsel is not ineffective or incompetent for failing to forecast changes in binding
precedent.
See Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993) (“The Sixth
Amendment does not require counsel to forecast changes or advances in the law or to
press meritless arguments before a court.”).
In a pair of decisions issued on the same day, the Seventh Circuit found that the
residual clause of the Sentencing Guidelines--§ 4B1.2(a)(2) was unconstitutionally
vague, and that application notes to that provision did not constitute freestanding valid
legal authority to classify prior crimes for career offender purposes. See United States
v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (overruling prior circuit precedent
foreclosing vagueness challenges to the guidelines and holding that the residual
clause in § 4B1.2(a)(1) is unconstitutionally vague); United States v. Rollins, 836 F.3d
737, 743 (7th Cir. 2016) (holding that the application note to the residual clause of §
4B1.2(a) that listed certain crimes as predicates for career offender classification has
no independent legal authority and is thus unconstitutional in line with Hurlburt’s
holding). Hurlburt and Rollins were cases before the Seventh Circuit on direct appeal,
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and thus the cases were remanded for resentencing.
In each of those cases, the
defendants challenging their sentences were challenging the classification and use of
prior crimes as “crimes of violence” under § 4B1.2.
The Guidelines, Section 4B1.1 classifies a defendant as a career offender if:
(1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
That section goes on to provide a variety of enhanced calculations and offense levels to
determine a ‘career offender’s’ sentencing range. See § 4B1.1. Section 4B1.2 (a) defines
terms used in §4B1.1. Notably, a “crime of violence” is defined as:
any offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that—(1) has as an element the use, attempted
use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.
The italicized portion of the crime of violence definition is known as the residual
clause—the clause found to be unconstitutionally vague in the ACCA statute, and in the
Guidelines See Johnson v. United States, 135 S.Ct. 2551 (2015) (holding that the residual
clause of the ACCA was unconstitutionally vague); Hurlburt, 835 F.3d 715 (applying the
Johnson holding to the residual clause of the Guidelines) (overruled by Beckles v. United
States, 2017 WL 855781, No. 15-8544, slip op. (S.Ct. March 6, 2017)). Section 4B1.2(b) defines
“controlled substance offense” as:
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an offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or
dispense.
Together, these provisions are utilized to calculate sentencing ranges.
The residual clause language in Section 4B1.2(a), which is italicized above, is
verbatim the ‘residual clause’ language in the Armed Career Criminal Act (“ACCA”)
924(e)(2)(B)(ii). In 2015, the United States Supreme Court found that the residual clause
language in the ACCA was unconstitutionally vague, a holding that was subsequently
made retroactive by the Court’s decision in Welch v. United States, 136 S.Ct. 1257, 1265
(2016) (finding that Johnson was a substantive rule that was retroactively applicable).
Initially, the Seventh Circuit refused to find the residual clause language
unconstitutionally vague in Section 4B1.2 because under existing circuit precedent
provisions in the advisory guidelines could not be challenged on due process vagueness
grounds.
See United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012).
However,
following a number of other precedential decisions from the Supreme Court and the
Seventh Circuit, the Seventh Circuit changed course and determined that the sentencing
guidelines could in fact be challenged on vagueness grounds. See Hurlburt, 835 F.3d
715. The Seventh Circuit simultaneously allowed a vagueness challenge to the residual
clause of the guidelines and found that the guidelines residual clause was
unconstitutionally vague. Id.
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In so holding, the Seventh Circuit leap-frogged ahead of the Supreme Court,
where a case was pending on the vagueness of the residual clause in guidelines Section
4B1.2. See Beckles v. United States, 136 S.Ct. 2510 (June 27, 2016) (granting certiorari).
Beckles has now been decided by the Supreme Court, and will be discussed in detail
below. Beckles v. United States, 2017 WL 855781, No. 15-8544, slip op. (S.Ct. March 6,
2017). Despite the pending case, many decisions concerning Johnson, Welch, Hurlburt,
Rollins, and the like trickled out of courts across the country. Of particular relevance to
the present Petition, the Seventh Circuit denied an application to file a second or
successive § 2255 petition where the Petitioner’s predicate convictions fell within the
scope of the “elements” clause of § 4B1.2(a) rather than the residual clause. Dawkins v.
United States, 809 F.3d 953, 954 (7th Cir. 2016) (“Dawkins cannot show that his
sentence violates Johnson. For the sentence was based not on the residual clause but
on prior convictions for carjacking, an element of which is the use or threatened use
of force, and on residential burglary, defined in U.S.S.G. § 4B1.2(a)(2) as a ‘crime of
violence.’”).
Also instructive are the Seventh Circuit’s holdings in three cases where the
predicate convictions the Petitioners sought to challenge fell within the ambit of the
elements or use of force clauses rather than the residual clause. See Holt v. United
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States, 843 F.3d 720, 723-24 (7th Cir. 2016)2 (denying leave for second or successive
§2255 petition on premise that prior conviction was initially classified as a burglary
under the elements clause, rather than as a crime under the residual clause of 18
U.S.C. 924(e)); Stanley v. United States, 827 F.3d 562, 564 (7th Cir. 2016) (“[T]he sole
holding of Johnson is that the residual clause is invalid. Johnson does not affect the
first portion clause (ii) (“burglary, arson, or extortion, [or] use of explosives”) and
does not have anything to do with the proper classification of drug offenses or the
operation of § 924(e)(2)(B)(i), known as the elements clause, which classifies as a
violent felony any crime punishable by a year or more in prison that ‘has as an
element the use, attempted use, or threatened use of physical force against the person
of another.’ The Guidelines contain the same language. U.S.S.G. § 4B1.2(a)(1).”);
Yates v. United States, 842 F.3d 1051, 1052 (7th Cir. 2016) (holding that 3 prior
convictions for battery fit within the scope of the elements clause of 18 U.S.C. § 924
and that Johnson did not affect the elements clause of §924(e)).
Presented with
arguments about these predicate convictions, the Seventh Circuit methodically
determined that petitioners could not take a back door in to the unconstitutional
residual clause by attempting to argue that their predicate convictions could not satisfy
2
“The possibility that after Johnson defendants may have a stronger incentive to contest the classification
of convictions under the elements clause—in the hope of moving them to the residual clause and thus
eliminating them from the set of violent felonies—has nothing to do with Holt’s situation. His burglary
conviction was classified as a violent felony under the burglary clause. Nothing in Johnson, Welch, or
Stanley affects the proper treatment of burglary convictions. So Holt’s second collateral attack cannot rest
on Johnson.” Holt, 843 F.3d at 723.
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the elements or force clauses and instead should have initially been characterized under
the residual clause.
Most recently, the United States Supreme Court spoke again on Johnson and its
progeny, holding that Johnson’s vagueness rationale did not apply to the Sentencing
Guidelines. Beckles v. United States, 2017 WL 855781, No. 15-8544, slip op. (S.Ct.
March 6, 2017). This holding definitively overrules Hurlburt, 835 F.3d 715, but does not
implicate the rationale behind Stanley, 827 F.3d 562. A much more thorough discussion
of how prior convictions are classified under the residual clause, or otherwise, could be
had, but the Court finds that topic fruitless in light of Beckles. For the reasons set forth
below, the Court finds that Petitioner’s claims lack merit under controlling precedent.
IV.
Legal Analysis
In the present matter, Petitioner’s arguments fail because the prior convictions
used as predicate offenses to enhance his sentencing range under § 4B1.2(b) are not
constitutionally infirm in any way. As the Government and the appointed Federal
Public Defender both contend—Petitioner’s prior convictions do not comport with
Johnson, Welch, Beckles or other Seventh Circuit progeny. Petitioner’s arguments in his
own reply brief do not change anything. Petitioner’s sentence was enhanced based on
at least two prior convictions for drug offenses. The “controlled substance offense”
prong of § 4B1.2(b) has not been found to suffer the same constitutional infirmity as the
residual clause of § 4B1.2(a). Because Petitioner’s prior convictions fit squarely within
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the “controlled substance offense” prong, there is no need to assess the applicability of
the residual clause.
Petitioner tries to argue that the categorical or modified categorical approach
should be applied to determine if state convictions are the same or more narrowly
defined than counterparts in federal statutes or the guidelines, but this argument is
unavailing because, at best, the argument is time barred as it relies on Descamps v
United States, 133 S.Ct. 2276 (2013). What is more, the Court has no need to engage in a
categorical or modified categorical analysis of the predicate offenses because those
convictions qualify as predicates under the “controlled substance prong” of § 4B1.2
rather than the “crime of violence” clause. Additionally, Beckles forecloses challenges to
the Guidelines of vagueness grounds. The Seventh Circuit in Stanley noted that Johnson,
Welch, and the like lead first to a flurry and then to a blizzard of filings by inmates
seeking to contest the classification of prior convictions, but that many of those seeking
relief had “misunderstood the effect of Johnson.” Stanley, 827 F.3d at 564. Petitioner
unfortunately falls in the camp of those who misunderstood, or did not qualify for
Johnson relief.
Additionally, as to Petitioner’s ineffective assistance of counsel claim, this
argument also lacks merit because counsel is not ineffective for failing to forecast a
change in binding precedent. At the time of sentencing, neither the ACCA nor the
Guidelines residual clauses were constitutionally infirm, so counsel was not deficient
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for failing to challenge a sentencing enhancement on these grounds. In light of the
Supreme Court’s holding in Beckles, the interpretation Petitioner urges is still foreclosed
today. Thus, Petitioner’s ineffective assistance of counsel claim necessarily fails.
V.
Pending Motions
As the record “conclusively demonstrates that [petitioner] is entitled to no
relief,” the Petitioner’s request for an evidentiary hearing (Doc. 19 at p. 11) is DENIED.
Prewitt v. United States, 88 F.3d 812, 820 (7th Cir. 1996).
VI.
Certificate of Appealability
Under Rule 11(a) of THE RULES GOVERNING SECTION 2255 PROCEEDINGS,
the “district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Thus, the Court must determine whether Petitioner’s
claims warrant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2).
A certificate of appealability is required before a petitioner may appeal a district
court’s denial of his habeas corpus petition. A petitioner is entitled to a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” This requirement has been interpreted by the Supreme Court to
mean that an applicant must show that “reasonable jurists could debate whether…the
petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.” Miller-el v. Cockrell, 537
U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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Here, the undersigned finds no basis for a determination that the Court’s instant
decision to dismiss petitioner’s claims is debatable or incorrect. For the reasons stated
above, petitioner asserted two meritless claims that reasonable jurists would conclude
provide no basis for relief. Therefore, the Court declines to certify any issues for review
pursuant to 28 U.S.C. § 2253(c).
VII.
Conclusion
Based on the foregoing analysis, Petitioner Wilson’s motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED and his case is
DISMISSED with prejudice. The Clerk of the Court is DIRECTED to enter judgment
accordingly. Further, no certificate of appealability shall issue.
IT IS SO ORDERED.
DATED: March 21, 2017
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge
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