Pendleton v. USA
Filing
20
MEMORANDUM AND ORDER, The Court DENIES petitioner Keon D. Pendleton's amended § 2255 petition [Doc. 8 and DECLINES to issue a certificate of appealability. Petitioner's Motion [Doc. 19 to Appoint New Counsel is DENIED and Petitioner's Motion [Doc. 18 to Dismiss is moot. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge J. Phil Gilbert on 3/29/2017. (jdh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEON D. PENDLETON,
Petitioner,
v.
Civil No. 16-cv-00136-JPG
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Keon D. Pendleton’s amended motion to
vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 8). The Government
has responded to the amended § 2255 motion (Doc. 12), along with a supplemental to its response
(Doc. 13), and the petitioner has replied (Doc. 14). Also pending before the Court is Petitioner’s
Motion [Doc. 18] to Dismiss By Court Order and Motion [Doc. 19] to Appoint New Counsel.
1. Background.
In its preliminary review of the amended § 2255 motion, the Court set forth the history of
this case:
On November 9, 2006, the petitioner entered a guilty plea to one count of
conspiracy to distribute 50 grams or more of crack cocaine. He was sentence on
March 6, 2007, to the custody of the Bureau of Prisons for 262 months, 10 years of
supervised release, and a fine of $100.00.
See United States v. Pendleton,
06-cr-40029-JPG.
The petitioner filed a pro se § 2255 motion (Doc. 1) on February 5, 2016.
The Court appointed him counsel, and on November 8, 2016, counsel filed an
amended § 2255 motion (Doc. 8). In the amended motion, the petitioner raises the
following claim:
•
The petitioner’s due process rights were violated by application of
the residual clause of the career offender guideline, U.S.S.G.
§ 4B1.2(a)(2), to find his prior 2005 conviction for aggravated
battery was a “crime of violence” supporting career offender status.
See United States v. Hurlburt, No. 14-3611 & 15-1686, 2016 WL
4506717, *7 (7th Cir. Aug. 29, 2016) (en banc; holding on direct
appeal that application of career offender residual clause was due
process violation because it was unconstitutionally vague).
Mem. & Ord. of Nov. 14, 2016 (Doc. 9).
2.
Standard.
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in violation
of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[r]elief under
§ 2255 is available ‘only in extraordinary situations, such as an error of constitutional or
jurisdictional magnitude or where a fundamental defect has occurred which results in a complete
miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting
Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to deny a § 2255
motion without an evidentiary hearing if “the motion and the files and records of the case
conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see
Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
The Court finds that an
evidentiary hearing is not warranted in this matter as the petitioner is entitled to no relief.
In his amended § 2255 motion, the petitioner argues that his due process rights were
violated when the Court applied the residual clause of the career offender (“CO”) guideline to find
his prior conviction for aggravated battery in 20051 was a “crime of violence” supporting career
offender status, and thus a higher guideline sentencing range. The CO guideline states, in
1 Petitioner also had an aggravated battery conviction in 2001 which petitioner admits does qualify under the “force”
clause of § 4B1.2(a)(2).
2
pertinent part, that a prior offense is a crime of violence if it “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.” U.S.S.G. § 4B1.2(a)(2) (emphasis added to residual
clause).
The petitioner’s argument relies on Johnson v. United States, 135 S. Ct. 2551 (2015),
which held that the use of the identical residual clause in the Armed Career Criminal Act, 18
U.S.C. § 924(e), to increase the statutory sentencing range is unconstitutional. Id. at 2563. This
is because the vagueness of the clause denies fair notice to a defendant of his potential punishment
and invites arbitrary enforcement by judges. Id. at 2557. In United States v. Hurlburt, 835 F.3d
715 (7th Cir. 2016) (en banc), the Seventh Circuit Court of Appeals applied the same rationale to
hold that use of the CO residual clause to support CO status, thereby increasing the guideline
sentencing range, is also unconstitutional. Id. at 725.
Hurlburt, however, was abrogated by Beckles, which held that sentencing guidelines are
not amendable to vagueness challenges. Beckles, 2017 WL 855781, at *6. This is because,
unlike the statute at issue in Johnson, advisory guidelines “do not fix the permissible range of
sentences” but “merely guide the exercise of a court’s discretion in choosing an appropriate
sentence within the statutory range.” Id.
Beckles forecloses the petitioner’s argument that he is entitled to § 2255 relief. There was
nothing unconstitutional about the Court’s using the CO residual clause to find Mr. Pendleton’s
prior conviction for aggravated battery was a crime of violence and increasing his guideline
sentencing range accordingly. This is because the Court’s guideline range findings did not fix the
sentencing range but merely guided the Court’s discretion within the fixed statutory sentencing
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range.
The petitioner, through counsel, filed a Motion to Dismiss by Court Order acknowledging
that Beckles rendered petitioner’s § 2255 proceedings meritless. (Doc. 18, pg 2). However,
petitioner also filed a pro se motion for new counsel stating that he believed he could still prevail
on his § 2255 motion under Mathis v. United States, 136 S.Ct. 2243 (2016). (Doc. 19).
[Petitioner] argues in his reply that Mathis provides an independent basis for
authorization. He cites Alexander v. United States, 121 F.3d 312 (7th Cir. 1997), for
the proposition that any intervening change in the law would allow a successive
application. This proposition clearly is not true, and Alexander does not say
otherwise; only new rules of constitutional law, made retroactive by the Supreme
Court, can provide a basis for authorization. See 28 U.S.C. §§ 2255(h)(2),
2244(b)(2)(A); Alexander, 121 F.3d at 314–15 (denying application because
applicant did “not point to any new rule made retroactive by the Supreme Court and
[did] not have new evidence showing his innocence”). Mathis did not announce
such a rule; it is a case of statutory interpretation.
Dawkins v. U.S., 829 F.3d 549, 550–51 (7th Cir. 2016).
Mathis is not retroactive and as such, petitioner cannot proceed on Mathis alone. If the
residual clause of the career offender guidelines had been void for vagueness, then Mathis would
have applied in the determination of any qualifying offenses with regard to petitioner’s career
offender status.
But as stated above, Beckles held that sentencing guidelines are not amendable
to vagueness challenges and petitioner’s career offender determination remains that which was
calculated at the time of his sentencing. Appointment of new counsel will not change the law.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of the
Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of
appealability of this final order adverse to the petitioner. A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
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U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska v. Cahill-Masching,
246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing, the petitioner must “demonstrate
that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have
been resolved in a different manner or that the issue presented was adequate to deserve
encouragement to proceed further.” Ouska, 246 F.3d at 1046; accord Buck v. Davis, 137 S. Ct.
759, 773 (2017); Miller-El v. Cockrell, 537 U. S. 322, 327 (2003). The Court finds that the
petitioner has not made such a showing and, accordingly, declines to issue a certificate of
appealability.
For this reason, the Court DENIES petitioner Keon D. Pendleton’s amended § 2255
petition [Doc. 8] and DECLINES to issue a certificate of appealability. Petitioner’s Motion
[Doc. 19] to Appoint New Counsel is DENIED and Petitioner’s Motion [Doc. 18] to Dismiss is
moot.
The Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: 3/29/2017
s/J. Phil Gilbert
J. PHIL GILBERT
U.S. DISTRICT JUDGE
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