Immel v. USA

Filing 14

ORDER Denying 12 Section 2255 Motion. Signed by Judge David R. Herndon on 9/23/2016. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN V. IMMEL,
Petitioner,
vs.

No. 3:16-cv-00522-DRH

UNITED STATES OF AMERICA,
Respondant.
ORDER
HERNDON, District Judge:
INTRODUCTION
This matter is before the Court on petitioner John V. Immel’s pro se
“addendum” to his closed § 2255 petition (Doc. 12). In this pleading, Mr. Immel
seeks relief under § 2255. As a basis for relief, Mr. Immel asserts he has recently
discovered evidence demonstrating that one of the banks he pled guilty to robbing
was not federally insured. Based on the record and the following, the Court finds
that the instant motion (Doc. 12) is not a second or successive unauthorized §
2255 petition. Further, on preliminary review, the Court finds that the asserted
basis for relief is untimely and dismisses the claim with prejudice.
Although addressed piecemeal, the Court treats the instant motion (Doc.
12) and the previously asserted Johnson claim (Doc. 1) as a single § 2255 petition
asserting two grounds for relief. The first ground for relief (Doc. 1) has been
denied on the merits (Doc. 10). The second ground for relief (Doc. 12) is denied

herein, on preliminary review, as untimely. Therefore, the entire matter is
dismissed with prejudice and an amended judgment will issue.
INSTANT MOTION AS SECOND OR SUCCESSIVE § 2255 MOTION
The Anti–Terrorism and Effective Death Penalty Act (“AEDPA”) prohibits
prisoners from filing a second or successive § 2255 motion unless they obtain
certification to do so from the court of appeals. See 28 U.S.C. § 2255(h). Absent
such authorization, a district court lacks jurisdiction to consider the merits of a
subsequent § 2255 motion. At first glance, Immel’s “addendum”, filed after
judgment was entered in his § 2255 petition, appears to constitute an
unauthorized second or successive § 2255 petition. However, a review of the
record reveals that Immel’s original petition (Doc. 1) should not “count” as a §
2255 motion for purposes of applying § 2255's second or successive provision.
Immel’s original § 2255 petition stemmed from a letter Immel sent to the
Court inquiring about Johnson v. United States, 135 S. Ct. 2551 (2015) and
asking the Court to appoint counsel regarding the same. While not expressly
identified as such, but with little time remaining for a Johnson action, 1 the court
considered the letter to be the functional equivalent of a motion brought under §
2255 and opened a § 2255 petition on Immel’s behalf. In so doing, the Court did
1

On June 26, 2015, the United States Supreme Court held that a portion of the ACCA is
unconstitutionally vague. See Johnson v. United States, 135 S. Ct. 2551 (2015). The Seventh
Circuit subsequently held that Johnson announced a new rule of constitutional law that is
retroactively available to cases on collateral review. Price v. United States, 795 F.3d 731 (7th Cir.
2015). As such, despite the age of Immel’s case, his Johnson claim was timely under 28 U.S.C. §
2255(f)(3) (section 2255 motions must be filed within one year of “the date on which the right
asserted was initially recognized by the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral review.”). However, the
deadline for asserting a Johnson claim was rapidly approaching.

not warn Immel about the consequences of this recharacterization and did not
give Immel a chance to withdraw his petition. Although the Court was attempting
to act in Immel’s best interest, the Court should have provided Immel with these
warnings. See Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d
778 (2003).
Seventh Circuit jurisprudence indicates that, under these circumstances,
Immel’s recharacterized § 2255 petition is not considered a § 2255 motion for
purposes of triggering the law's restrictions on second or successive petitions. See
Williams v. United States, 366 F.3d 438 (7th Cir. 2004) (per curiam). Thus, the
instant motion (Doc. 12), which expressly seeks relief under § 2255, is not
required to be certified by the U.S. Court of Appeals for the Seventh Circuit prior
to consideration by this Court and the Court proceeds with a preliminary review
of Immel’s claims.
BACKGROUND
In September 1997, Jon V. Immel was arrested for armed robberies of the
United Missouri Bank (UMB) and the Centralia Savings Bank in southern Illinois.
On the eve of trial, he pleaded guilty to two counts of armed bank robbery in
violation of 18 U.S.C. § 2113(a),(d); two counts of using a firearm during and in
relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1); and one count
of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1).
On November 20, 1998, at a time when the sentencing guidelines were
binding and mandatory, the late Judge Riley sentenced Immel to a total term of

363 months. (Crim. Docket 58, 62). Judge Riley imposed concurrent sentences of
63 months, the guideline minimum, for the two armed bank robberies and the
firearm possession. However, the violations of § 924(c) carried mandatory
minimum sentences. As to these counts, Judge Riley sentenced Immel to
statutory-minimum consecutive sentences for both § 924(c) offenses, five years for
the first, and 20 years for the second. U.S. v. Immel, 215 F.3d 1331 (7th Cir.
2000).
Immel’s direct appeal was dismissed after defense counsel filed an Anders
brief. Id. One argument raised on appeal was that because UMB is a self-insured
bank, Immel could not have violated § 2113 which only applies to institutions that
are federally insured. In rejecting this argument, the Seventh Circuit explained as
follows:
Immel mistakenly believes that UMB is self-insured due to some
information in the Presentencing Report that he misunderstood. At
the sentencing hearing, the government proffered that had there been
a trial it would have offered the testimony of UMB's vice-president
and the FDIC certificate as proof that the bank was federally insured
at the time of the robbery. We have held that such evidence is
sufficient to prove the federally insured element of the crime. Thus,
as counsel concluded, an appeal on this basis would be frivolous.
Id. (internal citations removed).
On May 11, 2016, the Court received a letter from Immel seeking relief
under Johnson v. United States, 135 S. Ct. 2551 (2015) and asking the Court to
appoint counsel regarding the same. As noted above, while not expressly
identified as such, but with little time remaining for a Johnson action, the court
considered the letter to be the functional equivalent of a motion brought under §

2255 and opened a § 2255 petition on Immel’s behalf. In so doing, the Court did
not warn Immel about the consequences of this recharacterization and did not
give Immel a chance to withdraw his petition.
Pursuant to Administrative Order 176, the Court appointed the Federal
Public Defender (“FPD”) to represent Immel (Doc. 2). The FPD was directed to file
an amended complaint within 45 days of entering an appearance in the matter.
On May 17, 2016, AFPD David Brengle entered his appearance on behalf of Immel
(Doc. 4). Thereafter, AFPD Brengle filed a motion to withdraw as attorney stating
Immel does not have a valid Johnson claim because he was not sentenced as an
armed career criminal or as a career offender (Doc. 5). The United States agreed
with AFPD Brengle’s assessment and his concession that Immel’s petition for
Johnson relief should be denied. Additionally, the government argued that,
because Bank Robbery (18 U.S.C. § 2113) is undeniably a “crime of violence”
under Seventh Circuit precedent, Immel’s application should be denied. Immel
was permitted an opportunity to respond (Doc. 9). On July 21, 2016, the Court
dismissed Immel’s § 2255 petition with prejudice, concluding that Immel was not
entitled to relief under Johnson (Doc. 10). Judgment was entered that same day
(Doc. 11). 2
Thereafter, Immel filed the subject pleading arguing, he has recently
discovered evidence demonstrating that the UMB Bank was not federally insured
at the time of the robbery and that he is entitled to relief under § 2255.

2

An amended judgment was entered on August 30, 2016 for the purpose of correcting a clerical
error (Doc. 13).

DISCUSSION
Pursuant to 28 U.S.C. § 2255 and Rule 4 of the RULES GOVERNING
SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS,
the Court has reviewed petitioner’s filing to determine whether he might be
entitled to relief. For procedural reasons, the Court determines that he is not.
28 U.S.C. § 2255(f) imposes a one year period of limitations upon the filing
of a motion attacking a sentence imposed under federal law. This period generally
begins to run on the date on which the judgment of conviction becomes final. 28
U.S.C. § 2255(f)(1). In the instant case, that deadline has long since passed.
Alternatively, as is relevant here, the time can run from “the date on which the
facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.” § 2255(f)(4).
In the instant case, on August 1, 2016, approximately 17 years after his
conviction, Immel submitted a letter of inquiry to the FDIC asking if “the United
States Missouri Bank of O’Fallon, Illinois (or ‘UMB Bank’ of O’Fallon) was insured
by, and/or a member bank, of the Federal Deposit Insurance Corporation (FDIC)
on or about the 21st day of August, 1997.” On August 22, 2016, the FDIC
responded as follows: “Our records do not indicate the existence of United States
Missouri Bank of O’Fallon, Illinois or UMB Bank of O’Fallon. However, there are
two similarly named banks in our system. The Bank of O’Fallon, O’Fallon, Illinois
has been insured by the FDIC since March 28, 1960, and UMB Bank, National
Association, Kansas City, Missouri, has been insured since January 1, 1934.”

Immel does not even come close to establishing due diligence as
contemplated under § 2255(f). Here, Immel waited approximately 17 years to
write a simple letter of inquiry to the FDIC. Surely, Immel (or his counsel) could
have submitted such a letter some time before August 1, 2016. Moreover, even if
Immel could establish due diligence, the response from the FDIC does not
establish that the subject UMB bank is not federally insured. It merely establishes
that the institution names provided by Immel do not match records in the FDIC
system. Additionally, this matter was considered during Immel’s direct appeal. As
explained by the Seventh Circuit, the government proffered that it had evidence
(testimony of UMB's vice-president and the FDIC certificate) proving the bank was
federally insured at the time of the robbery.
For the reasons discussed above, the Court cannot consider Immel’s
arguments on the merits and Immel’s § 2255 petition (Doc. 12) is denied as
untimely.
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.” A habeas
petitioner does not have an absolute right to appeal a district court's denial of his
habeas petition; he may appeal only those issues for which a certificate of
appealability have been granted. See Sandoval v. United States, 574 F.3d 847,
852 (7th Cir. 2009). A habeas petitioner is entitled to a certificate of appealability

only if he can make a substantial showing of the denial of a constitutional right.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); 28 U.S.C. § 2253(c)(2). Under
this standard, a petitioner must demonstrate that, “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’ ” Id. (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
Where a district court denies a habeas petition on procedural grounds, the
court should issue a certificate of appealability only if (1) jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and (2) jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. See Slack, 529 U.S. at 485.
Reasonable jurists could not debate that the petition should have been
resolved in a different manner. Reasonable jurists would not debate that the
petition does not state a valid claim of the denial of a constitutional right, nor
would they debate that the petition is untimely. Therefore, the Court declines to
certify any issues for review pursuant to 28 U.S.C. § 2253(c).
CONCLUSION
For the aforementioned reasons, Jon V. Immel’s motion to vacate, set aside
or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 12) is DENIED as
untimely, and the Court shall not issue a certificate of appealability. The Court

DIRECTS the Clerk of the Court to enter an amended judgment reflecting the
instant denial and the Court’s prior order of dismissal (Doc. 10).
IT IS SO ORDERED.
Signed this 23rd day of September, 2016.

Digitally signed by
Judge David R. Herndon
Date: 2016.09.23
02:58:04 -05'00'
United States District Judge