Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Immel v. United States

United States District Court, S.D. Illinois

September 23, 2016

JOHN V. IMMEL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondant.

          ORDER

          DAVID R. HERNDON UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         This matter is before the Court on petitioner John V. Immel's pro se “addendum” to his closed § 2255 petition (Doc. 12). In this pleading, Mr. Immel seeks relief under § 2255. As a basis for relief, Mr. Immel asserts he has recently discovered evidence demonstrating that one of the banks he pled guilty to robbing was not federally insured. Based on the record and the following, the Court finds that the instant motion (Doc. 12) is not a second or successive unauthorized § 2255 petition. Further, on preliminary review, the Court finds that the asserted basis for relief is untimely and dismisses the claim with prejudice.

         Although addressed piecemeal, the Court treats the instant motion (Doc. 12) and the previously asserted Johnson claim (Doc. 1) as a single § 2255 petition asserting two grounds for relief. The first ground for relief (Doc. 1) has been denied on the merits (Doc. 10). The second ground for relief (Doc. 12) is denied herein, on preliminary review, as untimely. Therefore, the entire matter is dismissed with prejudice and an amended judgment will issue.

         INSTANT MOTION AS SECOND OR SUCCESSIVE § 2255 MOTION

         The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) prohibits prisoners from filing a second or successive § 2255 motion unless they obtain certification to do so from the court of appeals. See 28 U.S.C. § 2255(h). Absent such authorization, a district court lacks jurisdiction to consider the merits of a subsequent § 2255 motion. At first glance, Immel's “addendum”, filed after judgment was entered in his § 2255 petition, appears to constitute an unauthorized second or successive § 2255 petition. However, a review of the record reveals that Immel's original petition (Doc. 1) should not “count” as a § 2255 motion for purposes of applying § 2255's second or successive provision.

         Immel's original § 2255 petition stemmed from a letter Immel sent to the Court inquiring about Johnson v. United States, 135 S.Ct. 2551 (2015) and asking the Court to appoint counsel regarding the same. While not expressly identified as such, but with little time remaining for a Johnson action, [1] the court considered the letter to be the functional equivalent of a motion brought under § 2255 and opened a § 2255 petition on Immel's behalf. In so doing, the Court did not warn Immel about the consequences of this recharacterization and did not give Immel a chance to withdraw his petition. Although the Court was attempting to act in Immel's best interest, the Court should have provided Immel with these warnings. See Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003).

         Seventh Circuit jurisprudence indicates that, under these circumstances, Immel's recharacterized § 2255 petition is not considered a § 2255 motion for purposes of triggering the law's restrictions on second or successive petitions. See Williams v. United States, 366 F.3d 438 (7th Cir. 2004) (per curiam). Thus, the instant motion (Doc. 12), which expressly seeks relief under § 2255, is not required to be certified by the U.S. Court of Appeals for the Seventh Circuit prior to consideration by this Court and the Court proceeds with a preliminary review of Immel's claims.

         BACKGROUND

         In September 1997, Jon V. Immel was arrested for armed robberies of the United Missouri Bank (UMB) and the Centralia Savings Bank in southern Illinois. On the eve of trial, he pleaded guilty to two counts of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d); two counts of using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1); and one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1).

         On November 20, 1998, at a time when the sentencing guidelines were binding and mandatory, the late Judge Riley sentenced Immel to a total term of 363 months. (Crim. Docket 58, 62). Judge Riley imposed concurrent sentences of 63 months, the guideline minimum, for the two armed bank robberies and the firearm possession. However, the violations of § 924(c) carried mandatory minimum sentences. As to these counts, Judge Riley sentenced Immel to statutory-minimum consecutive sentences for both § 924(c) offenses, five years for the first, and 20 years for the second. U.S. v. Immel, 215 F.3d 1331 (7th Cir.

         2000).

         Immel's direct appeal was dismissed after defense counsel filed an Anders brief. Id. One argument raised on appeal was that because UMB is a self-insured bank, Immel could not have violated § 2113 which only applies to institutions that are federally insured. In rejecting this argument, the Seventh Circuit explained as follows:

Immel mistakenly believes that UMB is self-insured due to some information in the Presentencing Report that he misunderstood. At the sentencing hearing, the government proffered that had there been a trial it would have offered the testimony of UMB's vice-president and the FDIC certificate as proof that the bank was federally insured at the time of the robbery. We have held that such evidence is sufficient to prove the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.