United States District Court, S.D. Illinois
DENNIS A. HIGGINS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No 14-cr-40072-JPG
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
matter comes before the Court on petitioner Dennis A.
Higgins' motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).
August 29, 2014, the petitioner pled guilty to one count of
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). The Court sentenced the petitioner to serve
36 months in prison. In arriving at this sentence, the Court
found the petitioner's base offense level was 14 under
United States Sentencing Guidelines Manual
(“U.S.S.G.”) § 2K2.1(a)(6) because he was a
person prohibited from possessing a firearm. The Court
increased that level by 2 points under U.S.S.G. §
2K2.1(b)(4) because the firearms he possessed were stolen and
by 4 points under U.S.S.G. § 2K2.1(b)(6)(B) because he
possessed the firearms in connection with another felony
offense, possession of crack cocaine. See
Presentence Investigation Report (“PSR”)
¶¶ 13-15. The Court then reduced his offense level
by 3 points under U.S.S.G. § 3E1.1(a) and (b) because
the petitioner timely accepted responsibility for his
offense. This yielded a total offense level of 17. PSR
¶¶ 21-23. The Court took into account that the
petitioner had a prior conviction for retail theft and a
prior conviction for resisting a peace officer, which
together contributed three of five points used to determine
his criminal history category of III under the U.S.S.G.
Chapter 5, Part A. PSR ¶¶ 35-39. Considering the
petitioner's total offense level of 17 and criminal
history category of III, the Court found his sentencing range
to be 30-37 months in prison and sentence him to serve 36
months. The Court did not calculated the petitioner's
offense level based on any prior “crimes of violence,
” did not find the petitioner to be a career offender
under the guidelines and did not apply the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
in imposing the petitioner's sentence. The petitioner did
not appeal his sentence.
§ 2255 motion, the petitioner raises the following
• Felon in possession of a firearm is not a violent
crime but it was used to exclude him from the Residential
Drug Abuse Program (“RDAP”) program in prison;
• His sentence was enhanced based on his criminal
• Johnson v. United States, 135 S.Ct. 2551
(2015), entitles him to some relief;
• His counsel was constitutionally ineffective in her
advice to plead guilty.
Court must grant a § 2255 motion when a defendant's
“sentence was imposed in violation of the Constitution
or laws of the United States.” 28 U.S.C. § 2255.
However, “[r]elief under § 2255 is available
‘only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a
fundamental defect has occurred which results in a complete
miscarriage of justice.'” United States v.
Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting
Blake v. United States, 723 F.3d 870, 878-79 (7th
Cir. 2013), cert. denied, 134 S.Ct. 2830 (2014)),
cert. denied, 135 S.Ct. 1574 (2015). It is proper to
deny a § 2255 motion without an evidentiary hearing if
“the motion and the files and records of the case
conclusively demonstrate that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b); see Sandoval v.
United States, 574 F.3d 847, 850 (7th Cir. 2009).
to Rule 4(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts, the Court has
determined that it is plain from the motion and the record of
the prior proceedings that the petitioner is not entitled to
relief on any ground raised.
Higgins' first argument, whether Higgins' offense of
conviction - felon in possession of a firearm - is a violent
crime played no role in his conviction or the Court's
selection of his sentence. Thus, it does not provide a basis
for relief under § 2255. How the Bureau of Prisons
choses to classify offenses of conviction and their specific
characteristics for purpose of admission to the RDAP program
is not relevant to whether a sentence should be vacated under
Higgins complains that his sentence was enhanced based on his
criminal history. The Court is puzzled by this argument
because the Court did not selected Higgins' offense level
under U.S.S.G. § 2K2.1 based on any of his prior
convictions, did not apply the career offender enhancement of
U.S.S.G. § 4B1.1, and did not use the ACCA to establish
Higgins' statutory sentencing range. Other than to
establish his status as a felon, Higgins criminal history was
used only to calculated his criminal history score as
directed by U.S.S.G. § 4A1.1. This does not entitled him
to relief under § 2255.
also argues that Johnson v. United States, 135 S.Ct.
2551 (2015), entitles him to some relief. Johnson
held that the “residual clause” in the ACCA's
definition of a violent felony is unconstitutionally vague
and cannot be used to justify a fifteen-year mandatory
minimum sentence under the ACCA for those convicted of
violating § 922(g). The ACCA residual clause defined a
violent felony to include any felony that “involves
conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B). The
Seventh Circuit Court of Appeals has recently held that
Johnson's rationale applies equally to
invalidate the identical “residual clause” of the
career offender guideline definition of “crime of
violence, ” U.S.S.G. § 4B1.2(a)(2). United
States v. Hurlburt, No. 14-3611, 2016 WL 4506717, at *1
(7th Cir. Aug. 29, 2016) (career offender guideline
definition incorporated into base offense level calculation
for felon in possession offense). However, these developments
in the law are not relevant to Higgins' case because he
was not sentenced based on either the ACCA, the career
offender guideline, or any other application of the
“residual clause.” Thus, neither Johnson
nor Hurlburt justify § 2255 relief in this
suggests in his motion that his counsel was constitutionally
ineffective in her advice to him to plead guilty. The Sixth
Amendment to the Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . .
. to have the Assistance of Counsel for his defence.”
U.S. Const. amend. VI. This right to assistance of counsel
encompasses the right to effective assistance of
counsel. McMann v. Richardson, 397 U.S. 759, 771, n.
14 (1970). A party claiming ineffective assistance of counsel
bears the burden of showing (1) that his trial counsel's
performance fell below objective standards for reasonably