Glover v. USA

Filing 2

OPINION AND ORDER Ronald Glovers motion to vacate, set aside or correct his sentence under §2255 s DENIED. A certificate of appealability is DENIED. Signed by Judge Philip P Simon on 5/30/17. (Copy mailed to pro se party)(kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
RONALD GLOVER,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cause No. 2:16CV221-PPS
Arising from 2:05CR31-PPS

OPINION AND ORDER
In March of 2005, Ronald Glover was charged with being a felon unlawfully in
possession of a firearm, in violation of 18 U.S.C. §922(g)(1) and §924(a)(2). [DE 3.]1 On
November 9, 2005, Glover entered a plea of guilty to the charge. [DE 26.] In the plea
agreement, Glover acknowledged that he had “three previous convictions for violent
felonies” within the meaning of §924(e), the Armed Career Criminal Act, which
subjected him to a statutory mandatory minimum sentence of not less than 15 years.
[DE 25 at ¶7(b), ¶8.] Glover entered into a binding agreement to be sentenced to a 15year prison term. [Id. at ¶7(e)(1).] At sentencing on March 9, 2006, I sentenced Glover
as the parties had agreed, to a term of 180 months. [DE 31; DE 32 at 2.] Glover did not
take a direct appeal.

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Unless otherwise indicated, docket citations refer to the criminal case, No. 2:05CR31.

The issue presently before the court is whether Johnson v. United States, 135 S.Ct.
2551, 2557 (2015) requires a reexamination of Glover’s status as an armed career
criminal. “Violent felony” is defined in §924(e)(2)(B) as a felony that:
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.
In Johnson the Supreme Court held that the “otherwise involves conduct” clause within
subsection (ii) of this definition — commonly referred to as the ACCA’s “residual
clause” — is unconstitutionally vague and therefore void. Last year, in Welch v. United
States, 136 S.Ct. 1257, 1265 (2016), the Supreme Court held that the Johnson decision
announced a new substantive rule that has retroactive effect in cases on collateral
review. Johnson therefore triggered a new one-year statute of limitations to bring
Johnson-based claims under §2255(f)(3).
Glover, acting pro se, has filed a motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. §2255. [DE 40.] Glover challenges the application of the ACCA to
his two prior state convictions for Aggravated Battery and one for Aggravated
Vehicular Hijacking. The government has responded to Glover’s motion by arguing
that all three of Glover’s prior convictions are violent felonies within the meaning of
§924(e)(2)(B)(i), and are therefore unaffected by Johnson’s voiding of the residual clause.
Glover has not filed any reply to the government’s opposition.

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The first of Glover’s three qualifying convictions is on a 1998 charge of
Aggravated Battery in a Public Place, in violation of 720 ILCS 5/12-4(b)(8). [DE 52-1 at
4.] The underlying definition of battery under Illinois law is found at 720 ILCS 5/12-3
(1998), which provided that a “person commits battery if he intentionally or knowingly
without legal justification and by any means, (1) caused bodily harm to an individual or
(2) makes physical contact of an insulting or provoking nature with an individual.” The
Seventh Circuit has recently analyzed this language to determine if Illinois Aggravated
Battery is a violent felony. In United States v. Lynn, 851 F.3d 786 (7th Cir. 2017), the court
held that the alternative elements of the Illinois crime of battery require the “modified
categorical approach,” looking “to the underlying documentation to determine if [the
defendant] was charged with aggravated battery because he ‘caused bodily harm,’ in
which case the crime qualifies as a crime of violence, or because he ‘made physical
contact of an insulting or provoking nature,’ in which case the crime would fall outside
[the] definition of a crime of violence.” Id. at 797.
In this instance, the charging information alleges that Glover caused bodily harm
to Freddie Salazar by shooting him in the knee with a handgun. [DE 52-1 at 4.] This
aggravated battery conviction clearly qualifies as a violent felony under §924(e)(2)(B)(i).
The second Aggravated Battery conviction that was applied to trigger the ACCA
was on a 1999 charge alleging that Glover and another defendant “caused great bodily
harm to Charles Holmes, to wit....struck Charles Holmes with a shank.” [DE 52-3 at 5.]

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This conviction also clearly constitutes a violent felony applying the modified
categorical approach under Lynn.
The third conviction relied on to apply the ACCA in Glover’s sentencing was for
Aggravated Vehicular Hijacking under Illinois law. The statutory definition of
vehicular hijacking required taking a motor vehicle “from the person or the immediate
presence of another by the use of force or by threatening the imminent use of force.”
720 ILCS 5/18-3 (1999). This statutory language clearly supports the conclusion that
the conviction was a violent felony under §924(e)(2)(B)(i).
Because all three prior convictions relied upon to apply the ACCA to Ronald
Glover clearly qualify under the definition in ¶924(e)(2)(B)(i), the Johnson decision
vacating the residual clause has no bearing on this case. Glover’s motion to vacate his
conviction and sentence will be denied. I must also consider whether to grant Glover a
certificate of appealability. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” RULES GOVERNING
SECTION 2255 PROCEEDINGS 11(a). “A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. §2253(c)(2). To obtain a certificate of appealability, Glover must show that
reasonable jurists could debate whether his petition should have been resolved
differently. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Glover has attempted no such
showing, and could not have succeeded if he’d tried.

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ACCORDINGLY:
Ronald Glover’s motion to vacate, set aside or correct his sentence under §2255
[DE 40] is DENIED.
A certificate of appealability is DENIED.
SO ORDERED this 30th day of May, 2017.
/s/ Philip P. Simon
Judge, U.S. District Court

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