United States District Court, S.D. Illinois
LAMADRAE J. CHAPMAN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
R. Herndon United States District Judge.
February 26, 2010, the Court sentenced Chapman to 151 months
imprisonment and the Clerk of the Court entered Judgment
reflecting the same on March 1, 2010. See United States v.
Chapman, 09-30096-DRH; Docs. 35 & 37. On June 23, 2016,
Chapman, pro se, filed a motion to vacate pursuant to 28
U.S.C. § 2255 based on Johnson v. United States, 135
S.Ct. 2551 (2015). The Court appointed the Federal Public
Defender to represent Chapman (Doc. 2) and Assistant Federal
Public Defender Thomas Gabel entered an appearance for
Chapman (Doc. 5). On July 13, 2016, Chapman, pro se, moved to
supplement (Doc. 6). The Court denied the motion as Gabel
entered an appearance for Chapman and directed that Chapman
only file pleadings through counsel (Doc. 7). Thereafter, on
July 15, 2016, Gabel filed a motion to withdraw as counsel
stating that Chapman is not entitled to relief under Johnson.
Thus, the Court directed Chapman to file a response to the
motion to withdraw on or before August 15, 2016 (Doc. 9).
Chapman did file a response and a request for substitute
counsel (Doc. 10). Based on the record and the applicable
law, the Court grants the motion to withdraw, denies the
request for substitute counsel and denies Chapman’s
motion to vacate as Chapman is not entitled to relief under
Johnson.1 Section 2255 allows a defendant to move to vacate,
set aside, or correct a sentence that was imposed in
violation of the Constitution of the United States. 28 U.S.C.
§ 2255(a). The Supreme Court held in Johnson that
increasing a defendant’s sentence based on the residual
clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)(2)(B)(ii), violates the Due Process
Clause of the Fifth Amendment because of its vagueness denies
fair notice to defendants of the sentences they may face and
invites arbitrary enforcement. Johnson, 135 S.Ct. at 2557.
Importantly, the Supreme Court in Johnson did not strike any
other provision of the ACCA, including subsection (i) - the
force clause. Johnson, 135 S.Ct. at 2563. In addition, the
Seventh Circuit held in Price v. United States, 795 F.3d 731,
732 (7th Cir. 2015), that “Johnson announces a new
substantive rule of constitutional law that the Supreme Court
has categorically made retroactive to final
convictions.” Therefore, defendants who sentences were
increased based on the residual clause of the Armed Career
Criminal Act can qualify for relief under § 2255. On
August 25, 2015, the Seventh Circuit stated in dicta,
”[W]e proceed on 1 A section 2255 proceeding is an
independent civil suit for which there is no constitutional
right to appointment of counsel. Rauter v. United States, 871
F.2d 693 (7th Cir. 1989); Oliver v. United States, 961 F.2d
1339, 1343 (7th Cir. 1992). In light of the fact that no
hearing is required, the Court is not obligated to appoint
counsel, and the Court finds that petitioner has adequately
presented his arguments, appointment of counsel is not
warranted in this case. Rauter, 871 F.2d at 695-96. the
assumption that the Supreme Court’s reasoning [in
Johnson] applies to section 4B1.2 as well”) Ramirez v.
United States, 799 F.3d 845(7th Cir. Aug. 25, 2015). The
appellate court further noted the U.S. Sentencing Commission
is seeking comments on a proposal to change the guideline
language to make it conform to Johnson. Id. The
Court notes Johnson, considered in conjunction with Price and
Ramirez, presents the possibility that an individual
sentenced as a career offender, based on the
Guidelines’ definition of a “crime of
violence” and the Guidelines’ “residual
clause, ” may have grounds for challenging his federal
conviction and sentence by means of a motion brought before
the sentencing court pursuant to § 2255.
the Court finds that Chapman’s arguments miss the mark.
Johnson does not apply to Chapman’s case as he was not
sentenced under the vague residual clause. In his criminal
case, Chapman was sentenced as “Career Offender”
after two prior convictions for crimes of violence. United
States v. Chapman, 09-30096-DRH; Doc. 32. The two crimes of
violence were residential burglary in #94-CF-517 and
aggravated battery in #00-CF-203 that were classified as
crimes of violence due to residential burglary being an
enumerated offense and aggravated battery having an element
of the use or attempted use of force. Thus, neither of these
two crimes of violence are due to the residual clause.
Johnson only applies to the ACCA residual clause as reflected
in § 4B1.2(a)(2). Therefore, the Court DENIES and
DISMISSES with prejudice Chapman’s 28 U.S.C. §
2255 motion (Doc. 1).
the 2009 Amendments to 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.” Thus, the Court
must determine whether petitioner’s claims warrant a
certificate of appealability pursuant to 28 U.S.C. §
2253(c)(2). 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,
574 F.3d at 852. 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, 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)).
district court denies a habeas petition, 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. As to petitioner’s claims, the
Court finds that reasonable jurists would not debate that the
petition does not present a valid claim of the denial of a
constitutional right, or that this Court is barred from
reviewing the merits of petitioner’s claim. Reasonable
jurists could not debate that the petition should have been
resolved in a different manner. Therefore, the Court declines
to certify any issues for review pursuant to 28 U.S.C. §
the Court DENIES Chapman’s motion under 28 U.S.C.
§ 2255 motion to vacate, set aside or correct sentence
by person in federal custody. The Court DISMISSES with
prejudice this cause of action. Further, the Court DECLINES
to issue a certificate of ...