Stanley, Lonzo J. v. USA

Filing 23

Transmission of Notice of Appeal, Docketing Statement, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 21 Notice of Appeal (Attachments: # 1 Docketing Statement, # 2 Order #19, # 3 Order #20, # 4 Docket Sheet) (voc)

Case: 3:15-cv-00222-bbc Document #: 19 Filed: 11/09/15 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - LONZO STANLEY,
OPINION AND ORDER
Petitioner,
v.

03-cr-62-jcs
15-cv-222-bbc

UNITED STATES OF AMERICA,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Contending that he was improperly sentenced in 2004 as a career offender, petitioner
Lonzo Stanley filed a motion for post conviction relief under 28 U.S.C. § 2255 in April
2015. Petitioner maintained that the sentencing court had erred in finding that he had three
previous state court convictions that made him a career offender under the sentencing
guidelines, because two of the convictions were not crimes of violence, as they must be to
be counted toward career offender status. He later moved to add a claim that under United
States v. Johnson, 135 S. Ct. 2551 (2015), his two prior convictions should not have been
taken into account in determining career offender status. The government argues that
petitioner’s § 2255 motion is not timely, the holding in Johnson has no relevance to
petitioner’s case and two of petitioner’s prior convictions were properly considered in the

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career offender analysis.
I conclude that petitioner’s motion for post conviction relief must be denied. The
one-year period in which he could have raised his claim began to run when the Supreme
Court decided in Begay v. United States, 553 U.S.137, 142-43 (2008), that a crime is not
a “violent felony” unless the criminal conduct is purposeful, violent, and aggressive. The
recent decision in Johnson expands on that holding but does not create a new opportunity
for him to raise a claim he could have raised seven years ago. Finally, even if his motion
were timely, petitioner has failed to show that he did not have the two qualifying predicate
convictions that made him a career offender under the sentencing guidelines.

BACKGROUND FACTS
Petitioner was convicted in 2004 of one count of distributing cocaine base in the
Western District of Wisconsin. The presiding judge found petitioner to be a career offender
under the sentencing guidelines because (1) he had at least two prior felonies that were
either crimes of violence or controlled substance offenses; (2) he was at least 18; and (3) the
offense for which he had been convicted was a controlled substance offense. U.S.S.G. §
4B1.1(a).

The sentencing court found that he had three prior felony convictions in the

Circuit Court of Cook County, Illinois: a 1993 conviction for a controlled substance offense,
a 1994 conviction for unlawful use of a weapon by a felon and a 1998 conviction for

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aggravated battery of a peace officer. Petitioner’s sentencing guideline range was 188-235
months; the statutory maximum sentence was 40 years; and he was sentenced to a term of
imprisonment of 200 months. He did not appeal from his sentence and never filed a motion
for post conviction relief until April of this year.
After petitioner’s motion was denied on June 5, 2015, he moved promptly under Fed.
R. Civ. P. 59(e) “to alter or amend the judgment.” Dkt. #5. Before that motion could be
acted upon, petitioner filed a second motion to alter or amend his § 2255 motion to add a
claim under Johnson v. United States, 135 S. Ct. 2551, that two of the three prior offenses
used to make him a career offender no longer qualified as crimes of violence under the
sentencing guidelines. Dkt. #6.
The government responded to the motions to amend or alter and for post conviction
relief, but then obtained court permission to withdraw its response and submit a new one
representing the Department of Justice’s corrected guidance on the effects of Johnson. In
its revised response, dkt. # 17, it stated that it did not oppose petitioner’s motion to alter
or amend to the extent that petitioner was asking for a chance to argue that the Johnson case
applied to his sentence, but it continued to take the position that petitioner’s motion was
untimely.
In addition, the government presented copies of court records from the Circuit Court
of Cook County, Illinois, showing that a grand jury had charged petitioner on two counts

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of aggravated battery.

In one document, the grand jury charged that petitioner, “in

committing a battery, other than by discharge of a firearm, intentionally or knowingly
caused bodily harm to James Cooper, to wit: Lonzo Stanley threw James Cooper to the
ground, knowing James Cooper to be a peace officer.” Dkt. #17-1. In the second, the grand
jury charged that petitioner, “in committing a battery, other than by discharge of a firearm,
intentionally or knowingly caused bodily harm to Victor Alcazar, to wit: Lonzo Stanley
struck Victor Alcazar in the head with his elbow, knowing Victor Alcazar to be a peace
officer.” Id. Another document showed that petitioner had been sentenced and committed
to the Illinois Department of Corrections to serve a two-and-one-half year sentence for the
offense of aggravated battery. Dkt. #17-3.

OPINION
Petitioner’s motion raises a claim related to the residual clause in the firearms
sentencing statute, 18 U.S.C. § 924 (e)( 2)(B), which sets out the definition of “violent
felony,” as including
any offense under federal or state law that is punishable by a term of
imprisonment for more than one year . . . 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

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otherwise involves conduct that presents a serious potential risk of
physical injury to another; . . . .
(The italicized portion is referred to as the residual clause.)

Under § 924(e)(1), this

subsection applies only to persons found guilty of violating 18 U.S.C. § 922(g). However,
when the sentencing commission made the decision to assign higher sentences to persons
who qualified as career offenders, it imported into the guidelines the definition used in §
924(e)(B), although it used the term “crime of violence” instead of “violent felony.”
U.S.S.G. § 4B1.2. As in § 924(e)(1), the commission set out the qualifications for a career
offender in U.S.S.G. § 4B1.1: a defendant would be classified as a career offender if he was
at least 18, was facing sentencing on a felony that was either a crime of violence or a
controlled substances offense and had been convicted of at least two such crimes in the past.
Until 2008, sentencing courts tended to read the residual clause as including any
crime that posed a serious risk of harm to the victim. Thus, crimes involving such offenses
as drunk driving, walking away from a place of lawful confinement, or fleeing and eluding
an officer were treated as predicate crimes of violence for the purpose of determining career
offender status. In 2008, however, the Supreme Court decided in Begay, 553 U.S. at 142,
that the residual clause did not include the crime of drunk driving. Dangerous as it is, drunk
driving does not involve “purposeful, violent, and aggressive conduct” of the type the statute
was intended to cover. Id. at 144-45. Rather, the Court held, the specific examples of

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crimes listed in § 924(e)(2)(B), such as burglary, arson, etc., were to be read “as limiting the
crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree
of risk posed, to the examples themselves.” Id. at 143. In successive cases, the Court
wrestled with that directive, deciding in Sykes v. United States, 131 S. Ct. 2267 (2011), for
instance, that “fleeing and eluding an officer” was conduct similar to the examples in the
statute. However, in Johnson v. United States, 135 S. Ct. 2551, the Court abandoned the
attempt to discern the meaning of the residual clause, id. at 2556, deciding that the clause
was unconstitutional because it was too vague to give ordinary people fair notice of the
conduct it punishes, or so standardless as to invite arbitrary enforcement. Id. In other
words, it violated “‘the first essential of due process.’” Id. at 2257 (quoting Connally v.
General Construction Co., 269 U.S. 385, 391 (1926)).
Petitioner bases his post conviction motion on the decision in Johnson, saying that
it establishes that his own sentence is unconstitutional and must be overturned because he
did not have the necessary two predicate sentences necessary for career offender status. In
doing so, he ignores the inconvenient fact that once Begay was decided in 2008, he was
presumed to know that he could challenge his sentence on the ground that it was based on
crimes that did not quality as crimes of violence. A number of persons in his position did
raise such claims. E.g., United States v. Hampton, 675 F.3d 720 (7th Cir. 2012) (holding
that defendant’s predicate crime of aggravated battery for making “insulting or provoking”

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physical contact with peace officer was not crime of violence); United States v. Evans, 576
F.3d 766 (7th Cir. 2009) (holding that making insulting or provoking contact with pregnant
woman was not crime of violence under sentencing guidelines). Johnson made it plain that
no crime would constitute a violent felony under § 924(e)(2)(B) unless it was spelled out in
the statute, but Begay made it clear that a crime would not qualify if it did not involve
“purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 144-45.
Once Begay was decided, petitioner had a year in which to bring a postconviction
motion under 28 U.S.C. § 2255(f), which provides that a one-year period of limitation
applies to a motion brought under § 2255. Subsection (3) applies to petitioner: it allows
a convicted person to challenge his conviction within a 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.” Because petitioner did not file his post conviction motion by April 16, 2009, which
would have been one year after Begay was decided, he lost his opportunity to challenge his
2004 classification as a career offender.
But even if petitioner had brought a timely motion, he could not have prevailed.
Conceding that his controlled substance offense can be counted for career offender purposes,
he raises a plausible challenge to his 1994 conviction for unlawful use of a weapon by a
felon. However, his challenge to his 1998 conviction for aggravated battery of a peace officer

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fares less well.
Petitioner starts with his 1994 conviction for unlawful use of a weapon by felon,
making a reasonable argument that this crime would not have constituted a crime of violence
under § 4B1.1. In light of Begay, it appears that petitioner is correct, and the government
does not argue otherwise. The probation officer stated in the presentence report prepared
for petitioner’s 2004 sentencing in this court that petitioner had been arrested after officers
saw him walking out of a building with a loaded .25 caliber semi-automatic pistol in his
hand. Nothing in the report suggested that petitioner had fired the gun, threatened to do
so before he was arrested or used or attempted to use the pistol as a weapon. In short, it
cannot be said that petitioner’s actions constituted a crime of violence under subsection
(a)(1) or (2) of § 4B1.2 or that he could be said to have been acting purposefully, violently
or aggressively.
Petitioner’s 1998 conviction for aggravated battery of a peace officer under 720 ILCS
5/12-4(b)(6) presents a slightly more complex question. Petitioner contends that this
conviction should not count as a crime of violence under the guidelines because the statute
under which he was convicted applied to both violent and non-violent conduct and it is not
possible to tell from reading the statute how his conduct was charged.
In 1998, when petitioner was convicted, 720 ILCS 5/12-4(b)(6) read in relevant part
as follows:

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Aggravated Battery.
(a) A person who, in committing a battery, intentionally or knowingly causes
great bodily harm, or permanent disability or disfigurement commits
aggravated battery.
(b) In committing a battery, a person commits aggravated battery if he or she:
* * * **
(6) Knows the individual harmed to be a peace officer, a person summoned and
directed by a peace officer, a correctional institution employee, or a fireman
while such officer, employee or fireman is engaged in the execution of any
official duties including arrest or attempted arrest, or to prevent the officer,
employee or fireman from performing official duties, or in retaliation for the
officer, employee or fireman performing official duties, and the battery is
committed other than by the discharge of a firearm . . . .
1997 Ill. Legis. Serv. P.A. 90-115 (H.B. 1548).
On its face, the statute makes a battery “aggravated” only if the victim is within a
protected group; it does not say that the batterer must knowingly cause bodily harm to that
person. However, a look at the Illinois statute defining “battery,” 720 ILCS 5/12-3, shows
that it is bifurcated: a person can commit battery if, acting knowingly and without legal
justification, he causes bodily harm to an individual or if he makes physical contact of an
insulting or provoking contact.
Reading 720 ILCS 5/12-4-(b)(6) together with 720 ILCS 5/12-3 and in light of Begay,
554 U.S. 137, it follows that a person who commits battery against a peace officer will have
committed a crime of violence for sentencing guideline purposes only if he acted knowingly

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and without legal justification and caused bodily harm to an individual.

However,

determining whether a particular offender was charged with knowingly causing bodily harm
to the peace officer cannot always be determined merely from reading the statute.
When a bifurcated statute is involved, the law provides the sentencing court some help
in determining the nature of the offense.

The court may refer to a limited range of

documents: charging papers, a written plea agreement, a transcript of the plea colloquy and
“any explicit factual finding by the trial judge to which the defendant assented.” Shepard v.
United States, 544 U.S. 13 (2005) (identifying documents that may be relied upon in
determining whether prior convictions for burglary involved burglary of building, in which
case burglary was covered under § 924(e), whereas burglary of automobile or boat was not,
because it posed less risk of harm to persons); United States v. Woods, 576 F.3d 400 (7th
Cir. 2009) (when statute covers more than one offense, proper to consult documents such as
charging documents to consider whether defendant’s crime is crime of violence under
U.S.S.G. § 4B1.1).
When the government filed its Amended Response to Petitioner’s Request to Alter or
Amend, dkt. #17, it attached copies of the indictments returned by a grand jury in Cook
County on June 14, 1998, as well as a copy of the Order of Sentence and Commitment to the
Illinois Department of Corrections. Dkt. #17-3. In the first indictment, dkt. #17-1, the
grand jury charged that petitioner “intentionally or knowingly caused bodily harm” to a

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person he knew to be a peace officer by throwing him to the ground; in the second, id., the
grand jury charged that petitioner “intentionally or knowingly caused bodily harm” to a
person he knew to be a peace officer by striking him in the head with his elbow. These
documents show that petitioner was charged in both instances with knowingly causing bodily
harm to a peace officer and not with the lesser offense of making physical contact of an insulting
or provoking nature with a peace officer. Further, the commitment order indicates that
petitioner was sentenced to two-and-one-half years for the offense of aggravated battery. Dkt.
#17-3.
Petitioner argues that the commitment order does not show whether he was actually
found guilty of the “causing bodily harm” part of the statute or whether the charges against
him were bargained down to the lesser offense of making physical contact of an insulting or
provoking nature. However, under Shepard, 544 U.S. 13, the charging documents are
sufficient to demonstrate that he pleaded guilty to the crime of intentionally or knowingly
causing bodily harm to a person he knew to be a peace officer. The commitment order does
not suggest that the charges were reduced. Thus, even if petitioner had filed a timely motion
for post conviction relief, it is unlikely that he could have prevailed on his claim that he was
improperly classified as a career offender.
I conclude therefore that petitioner has no viable claim of relief under 28 U.S.C. §
2255.

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Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must issue
or deny a certificate of appealability when entering a final order adverse to a petitioner. To
obtain a certificate of appealability, the applicant must make a "substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274,
282 (2004). This means 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." Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (internal quotations and citations omitted). The question in this
case is not entirely straightforward. I cannot find that petitioner Defendant has failed to
make a substantial showing of a denial of a constitutional right. Accordingly, a certificate of
appealability will issue.

ORDER
IT IS ORDERED that petitioner Lonzo Stanley’s motion for post conviction relief,
dkt. #1, is DENIED, as are his first and second motions to alter or amend judgment, dkts.

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##5 and 6. Further, it is ordered that a certificate of appealability shall issue.
Entered this 9th day of November, 2015.

BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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