Bell v. USA
Filing
11
ORDER DENYING 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Armon Bell and GRANTING 10 First MOTION to Withdraw as Attorney. The Court DECLINES to issue a certificate of appealability. This action is DISMISSED with prejudice, and the Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 2/10/17. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARMON BELL,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 16-CV-736-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is currently before the Court on the pro se Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Armon Bell (Doc. 1).
Also before the Court is the motion to withdraw filed by Assistant Federal Public
Defender Thomas Gabel (Doc. 10). For the reasons explained below, Mr. Gabel’s motion
to withdraw is granted, and the § 2255 petition is denied.
BACKGROUND
Petitioner Armon Bell was indicted on January 19, 2007, on one count of being a
felon in possession of a firearm. United States v. Bell, SDIL Case No. 3:07-cr-30014, Doc. 1.
He pleaded guilty to the charge five months later. Id. at Doc. 22. The Government and
Bell determined, and the presentence investigation report (“PSR”) later confirmed, that
Bell was subject to an enhanced sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), based on his criminal history that included two prior
convictions for aggravated battery and a prior conviction for unlawful delivery of a
controlled substance. Id. at Docs. 22, 28. Based on his status as an armed career criminal,
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Bell faced a mandatory minimum sentence of fifteen years of imprisonment. Id. at
Doc. 28. At sentencing on September 17, 2007, District Judge G. Patrick Murphy adopted
the PSR in full and concluded that Bell was an armed career criminal. Id. at Doc. 32.
Judge Murphy sentenced Bell to the statutory minimum of fifteen years in prison. Id. at
Docs. 27, 31, 32.
On July 1, 2016, Bell filed a habeas petition under 28 U.S.C. § 2255 challenging his
enhanced sentence as an armed career criminal based on the Supreme Court’s decision
in Johnson v. United States, 135 S.Ct. 2551 (2015) (Doc. 1). In Johnson, the Supreme Court
held that “the imposition of an enhanced sentence under the residual clause of [the
Armed Career Criminal Act] violates due process because the clause is too vague to
provide adequate notice.” Price v. United States, 795 F.3d 731, 732 (7th Cir. 2015) (citing
Johnson, 135 S.Ct. at 2557). That holding is categorically retroactive to cases on collateral
review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016); Price, 795 F.3d at 734. Bell
argues that as a result of Johnson, he no longer has three qualifying convictions under the
ACCA, and he should be resentenced (Doc. 1).
The Court determined that Bell’s § 2255 petition survived preliminary review,
ordered the Government to respond to the petition, and appointed Assistant Federal
Public Defender Thomas Gabel to represent Bell (Doc. 2). In its response, the
Government sets forth three arguments as to why Bell’s petition should be denied: (1) he
waived his right to bring a collateral attack based on Johnson, (2) his claims have been
procedurally defaulted, and (3) in the alternative, his claims should be dismissed on the
merits because none of his three qualifying convictions were based on the residual
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clause of the ACCA (Doc. 6). In turn, Mr. Gabel filed a motion seeking to withdraw as
Bell’s attorney after determining that none of Bell’s predicate offenses were classified as
a crime of violence under the residual clause of the ACCA (Doc. 10).
DISCUSSION
The Court starts with the Government’s first argument and agrees that Bell
waived his right to collaterally challenge his sentence pursuant to 28 U.S.C. § 2255.
See United States v. Bell, SDIL Case No. 3:07-cr-30014, Doc. 22. 1 A defendant can waive
his right to collateral review as part of a plea agreement, and such waivers are enforced
unless the plea agreement was involuntary, the court relied on a constitutionally
impermissible factor (like the defendant’s race), the sentence exceeded the statutory
maximum, or the defendant claimed ineffective assistance of counsel in connection with
negotiation of the plea agreement. Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011)
(citing Jones v. United States, 167 F.3d 1142, 1144-45 (7th Cir. 1999)). Bell does not argue,
and the Court does not believe, that any of these exceptions apply (see Doc. 1).
Accordingly, the waiver dooms Bell’s § 2255 petition.
The waiver provision in Bell’s plea agreement states in pertinent part:
The Defendant is aware that Title 19, Title 28 and other provisions of the United States
Code afford every defendant limited rights to contest a conviction and/or sentence.
Acknowledging all this, and in exchange for the recommendations and concessions made
by the United States in this plea agreement, the Defendant knowingly and voluntarily
waives his right to contest any aspect of his conviction and sentence that could be
contested under Title 18 or Title 28, or under any other provision of federal law, except
that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the
Court (or any applicable statutory minimum, whichever is greater), the Defendant
reserves the right to appeal the reasonableness of the sentence. . . . Defendant’s waiver of
his right to appeal or bring collateral challenges shall not apply to: 1) any subsequent
change in the interpretation of the law by the United States Supreme Court or the United
States Court of Appeals for the Seventh Circuit, which is declared retroactive by those
Courts, and which renders the defendant actually innocent of the charges covered herein,
and 2) appeals based upon Sentencing Guideline amendments which are made retroactive
by the United States Sentencing Commission (see U.S.S.G. § 1B1.10).
United States v. Bell, SDIL Case No. 3:07-cr-30014, Doc. 22.
1
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Even if the Court were to find that Bell’s claims were not waived, however, he is
not entitled to relief because none of his qualifying convictions were based on the
residual clause of the Armed Career Criminal Act. Under the ACCA, a defendant
convicted of being a felon in possession of a firearm faces more severe punishment if he
has three or more previous convictions for a violent felony or a serious drug offense. 18
U.S.C. § 924(e). Bell does not dispute that his previous conviction for unlawful delivery
of a controlled substance qualifies as a “serious drug offense” under the ACCA (see Doc.
1). Therefore, the issue for the Court is whether Bell’s previous convictions for
aggravated battery were classified as “violent felonies” under the residual clause of the
ACCA.
The ACCA defines a “violent felony” in three ways. It is any crime 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, arson, extortion, or involves use of explosives; or
(3)
is a crime that “otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(b). Definition one is referred to as the “elements clause”; definition
two is referred to as the “enumerated crimes clause”; and definition three is the
“residual clause.” Johnson invalidated enhanced sentences under the ACCA where the
previous convictions were defined as violent felonies under the residual clause.
See Stanley v. United States, 827 F.3d 562 (7th Cir. 2016) (explaining that Johnson does not
affect convictions classified under the enumerated crimes clause or the elements clause
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of the Sentencing Guidelines or the Armed Career Criminal Act). Thus, in order for Bell’s
aggravated battery convictions to count as “violent felonies” for purposes of the ACCA
sentencing enhancement, they must fall under the elements clause or the enumerated
crimes clause.
Bell’s aggravated battery convictions quite obviously do not fall under the
enumerated crimes clause because aggravated battery is not one of the listed offenses.
See 18 U.S.C. § 924(e)(2)(b). They do, however, fall under the elements clause. In Illinois,
a person commits a misdemeanor simple battery “if he or she knowingly without legal
justification by any means (1) causes bodily harm to an individual or (2) makes physical
contact of an insulting or provoking nature with an individual.” 720 ILL. COMP. STAT.
5/12-3. Simple battery is elevated to a felony aggravated battery if one of several
aggravating factors is present. 720 ILL. COMP. STAT. 5/12-3.05. The Seventh Circuit has
previously held that a prior conviction for aggravated battery based on simple battery
causing bodily harm under the first prong of the statute has as an element “the use,
attempted use, or threatened use of physical force,” and therefore qualifies as a “violent
felony” under the ACCA. Hill v. Werlinger, 695 F.3d 644, 650 (7th Cir. 2012).
With respect to Bell’s first conviction for aggravated battery in 2002, the PSR
indicates that Bell “caused bodily harm to a peace officer by striking [the officer] in the
shoulder and head with a beer bottle” (Doc. 28 in criminal case 3:07-30014). Based on the
language “caused bodily harm,” it is clear that Bell committed a battery under the first
prong of the statute, which was elevated to aggravated battery because his victim was a
police officer performing his or her official duties. See 720 ILL. COMP. STAT.
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5/12-3.05(d)(4). Therefore, Bell’s first conviction for aggravated battery was classified as
a violent felony under the elements clause of the ACCA, not the residual clause.
As for Bell’s second conviction for aggravated battery in 2005, the PSR indicates
that “in committing a battery, and by use of a deadly weapon, a hand gun, [Bell]
intentionally caused bodily harm to [a woman] by striking her in the head with a gun”
(Doc. 28 in criminal case 3:07-30014). Again, based on the language “caused bodily
harm,” it is clear that Bell committed a battery under the first prong of the statute, which
was elevated to aggravated battery because it involved the use of a deadly weapon. See
720 ILL. COMP. STAT. 5/12-3.05(f)(1). Thus, like his first conviction for aggravated battery,
his second conviction also was classified as a violent felony under the elements clause of
the ACCA, not the residual clause. Because the residual clause was not implicated for
either of Bell’s aggravated battery convictions, Johnson has no effect on his classification
as an armed career criminal.
In conclusion, Bell’s § 2255 petition must be denied because it is barred by the
waiver in his plea agreement and, in the alternative, it fails on the merits.
CERTIFICATE OF APPEALABILITY
If Bell wants to appeal this Court’s ruling denying his petition, he must first
secure a certificate of appealability, either from this Court or from the Court of Appeals.
See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to § 2253, a certificate of
appealability may issue “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
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applicant must show that “reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Bell need not show that his appeal will succeed, but he must show “something
more than the absence of frivolity” or the existence of mere “good faith” on his part.
Miller-El v. Cockrell, 537 U.S. 322, 337, 338 (2003). If the district court denies the request, a
petitioner may request that a circuit judge issue the certificate of appealability. FED. R.
APP. P. 22(b)(1)-(3).
For the reasons detailed above, the Court has determined that Bell is not entitled
to any relief under § 2255, and reasonable jurists could not debate that conclusion. Thus,
Bell has not made “a substantial showing of the denial of a constitutional right,” and a
certificate of appealability will not be issued.
CONCLUSION
Armon Bell’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 (Doc. 1) is DENIED. The Motion to Withdraw filed by Assistant Federal
Public Defender Thomas Gabel (Doc. 10) is GRANTED. The Court DECLINES to issue a
certificate of appealability. This action is DISMISSED with prejudice, and the Clerk of
Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: February 10, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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