United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE
the Court is Petitioner Michael Swanson's oral motion for
bond pending a determination of the motion he filed pursuant
to 28 U.S.C. § 2255 in this case. Petitioner's
motion is GRANTED. Petitioner has shown that he has raised,
in his pending habeas case, a substantial constitutional
claim upon which he has a high probability of success and
that exceptional circumstances exists which require bail to
make the habeas remedy effective.
March 2000, Petitioner was charged by indictment with one
count of bank robbery in violation of 18 U.S.C. §
2113(a) and (d). United States v. Swanson, Central
District Illinois, Springfield Division, Case No.
00-CR-300018 (hereinafter, Case No. 00-30018, Indictment (d/e
7). Following a jury trial, Petitioner was found guilty of
the charged offense. Case No. 00-30018, Verdict (d/e 102);
United States v. Swanson, 55 F. App'x 761, 761
(2003). On May 3, 2002, Petitioner was sentenced to 264
months of imprisonment. See Case No. 00-30018,
Judgment (d/e 144); Swanson, 55 F. App'x at 761.
Petitioner's sentence was based, in part, on a
determination that he “qualified as a career offender
under the Sentencing Guidelines.” Swanson, 55
F. App'x at 761.
appealed his sentence, arguing that his prior felony
conviction for unlawful restraint was not a “crime of
violence, ” meaning that he lacked the two prior
convictions necessary to be classified as a career offender
under the Sentencing Guidelines. Id. The Seventh
Circuit noted that “Illinois courts have stated that
‘[a]ctual or physical force is not a necessary element
of unlawful restraint as long as an individual's freedom
of locomotion is impaired.'” Id. at 762
(citing People v. Bowen, 609 N.E.2d 346, 361
(Ill.App.Ct. 1993)). Thus, the crime of unlawful restraint in
Illinois was not a “crime of violence” under the
“elements clause” of the career offender
guideline. Id. However, the Seventh Circuit went on
to hold that unlawful restraint did qualify as a “crime
of violence” under the “residual clause” of
the career offender guideline. Id. at 762-63.
Petitioner's sentence as a career offender was affirmed.
Id. at 763.
timely filed his first § 2255 petition in May 2004.
See Swanson v. United States, Central District of
Illinois, Springfield Division, Case No. 04-03012
(hereinafter, Case No. 04-03012), Petition of Writ of Habeas
Corpus (d/e 1). The petition was denied on December 14, 2004.
Case No. 04-03012, December 13, 2004 Order (d/e 13).
Petitioner's subsequent motions for leave to file a
successive § 2255 motion were denied. See Swanson v.
United States, No. 08-3494 (7th Cir. Oct. 20, 2008);
Swanson v. United States, No. 10-1461 (7th Cir. Mar.
2015, the Supreme Court decided Johnson v. United
States, 135 S.Ct. 2551 (2015), in which it held that the
residual clause of the Armed Career Criminal Act was
unconstitutionally vague. 135 S.Ct. at 2562-63. In light of
this holding, the Seventh Circuit granted Petitioner's
motion for leave to file a successive § 2255 motion.
See Swanson v. United States, No. 15-2776 (7th Cir.
Sept. 4, 2015). At a hearing on September 9, 2016, Petitioner
made an oral motion for bond pending a determination of his
§ 2255 motion.
district judges in habeas corpus and section 2255 proceedings
have inherent power to admit applicants to bail pending the
decision of their case . . .” Cherek v. United
States, 767 F.2d 335, 337 (7th Cir. 1985). It does not
appear that the Seventh Circuit has formulated a standard as
to when a judge may grant a motion for bond in the context of
a § 2255 proceeding other than to state that the power
to grant bond in such circumstances should “be
exercised very sparingly.” Id. A case from the
Urbana Division of this District has held, however, that bail
should be granted pending post-conviction habeas corpus
review only “when the petitioner has raised substantial
constitutional claims upon which he has a high probability of
success” and “extraordinary or exceptional
circumstances exist which make the grant of bail necessary to
make the habeas remedy effective.” Douglas v.
United States, No. 06-CV-2113, 2006 WL 3627071, at *1
(C.D. Ill.Dec. 11, 2006) (citing Landano v.
Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992)).
Petitioner has met both prongs of this test with respect to
his pending § 2255 motion.
Petitioner has raised a constitutional claim upon which he
has a high probability of success.
majority of federal appellate circuits have held or assumed
that Johnson, a holding that has since been made
retroactive, see Welch v. United States, 136 S.Ct.
1257, 1268 (2016), is applicable to the United States
Sentencing Guidelines. See United States v.
Hurlburt, __F.3d___, 2016 WL 4506717, at *7 (2016)
(discussing cases). Further, the Supreme Court is scheduled
to hear a case involving Johnson's applicability
to the guidelines from the lone circuit that has held that
Johnson does not apply to the Sentencing Guidelines,
the Eleventh Circuit. See Beckles v. United
States, 616 F. App'x 415, 416 (11th Cir. 2015),
cert. granted, 136 S.Ct. 2510 (2016). Given the
overwhelming consensus that Johnson applies to the
guidelines, the likelihood of Petitioner prevailing on his
pending § 2255 motion is not “nil” despite
the Government's argument to the contrary. Rather, the
Court finds that Petitioner has shown a high probability of
success on the constitutional claim to be determined in
Exceptional circumstances justify Petitioner's release on
Petitioner's § 2255 motion is successful, he should
not have been sentenced as a career offender. According to
the Presentence Investigation Report filed in
Petitioner's criminal case, without the career offender
classification, Petitioner's total offense level would
have been 28 and his criminal history category would have
been V. Case No. 00-30018, Presentence Investigation Report
(PSR) (d/e 146), ¶¶ 29, 43. A total offense level
of 28 coupled with a criminal history category of V results
in a guidelines sentencing range of 130-162 months. As
Petitioner has been incarcerated for more than 190 months, if
his pending § 2255 motion is successful, he will have
already served a sentence in excess of what could have been
imposed under the mandatory guidelines that were in place at
the time of his sentencing had he not been classified as a
the Court finds that Petitioner is a good candidate for bond.
He has no serious infractions in the Bureau of Prisons (BOP).
He has a supportive family that plans to provide him with a
place to live and employment with the family towing business.
Moreover, Petitioner's prison record evidences an ability
and desire to work, as he has participated in the UNICOR jobs
program, taught ...