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Tinker v. United States

United States District Court, S.D. Illinois

October 4, 2016

LARRY G. TINKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondant.

          MEMORANDUM AND ORDER

          David R. Herndon United States District Judge.

         I. INTRODUCTION

         This matter is before the Court on petitioner Larry G. Tinker's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1) and Assistant Federal Public Defender Todd M. Schultz's motion to Withdraw (Doc. 6). The Government filed a response (Doc. 10) to the motion to withdraw concurring in the assessment that the petitioner is not entitled to any relief. Petitioner was allowed until September 12, 2016 to respond. To date, the petitioner has not responded.

         Based on the record and the following, the Court GRANTS the motion to withdraw and DENIES petitioner's § 2255 motion.

         BACKGROUND

         The defendant pleaded guilty to one count of Conspiracy to Distribute and Possess With Intent to Distribute a Mixture and Substance Containing Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (3:07-cr-30180-2 Doc. 74). On June 26, 2009, the Court sentenced defendant to a term of 262 months' imprisonment followed by ten years of supervised release upon release from imprisonment and Judgment was entered (3:07-cr-30180-2 Doc. 79).

         When the defendant was sentenced, he was determined to be a career offender. The defendant's career offender status was based on the defendant having two or more prior felony convictions involving a controlled substance (3:07-cr-30180-2 Doc. ¶ 41). According to his presentence report, petitioner had the following three predicate offense convictions under U.S.S.G. § 4B1.2(b):

• On September 28, 1990, Petitioner was convicted of unlawful possession with intent to deliver a controlled substance in Fayette County, Illinois, Case 89-CF-35. (Doc. 76 ¶ 52, criminal case).
• On September 14, 1990, Petitioner was convicted of possession with intent to distribute methamphetamine in U.S. District Court for the Central District of Illinois, Case 09-10009. (3:07-cr-30180-2 Doc. 76 ¶ 53, ).
• On January 25, 1999, Petitioner was convicted of unlawful possession with intent to deliver a controlled substance in Fayette County, Illinois, Case 98-CF-80. (3:07-cr-30180-2 Doc. 76 ¶ 54).

         On June 16, 2016, petitioner, proceeding pro se, filed the above petition to vacate, set aside or correct sentence under 28 U.S.C. § 2255 (Doc. 1). Petitioner's claims are based upon the U.S. Supreme Court's decision in Johnson v. U.S., 135 S.Ct. 2551 (2015). Pursuant to this Court's Administrative Order 176, Assistant Federal Public Defender Todd M. Shultz entered his appearance on behalf of petitioner (Doc. 5). Thereafter, AFPD Shultz filed a motion to withdraw as attorney (Doc. 6). AFPD Shultz states petitioner does not have a valid Johnson claim because his predicate offenses are not violent offenses that implicate the ACCA's residual clause or the career offender guideline's residual clause. The United States agrees that the petitioner does not have a valid claim under Johnson. The United States first argues that Johnson is not retroactively applicable on collateral review where, as in this case, the Sentencing Guidelines were advisory at the time sentence was imposed. If, however, Johnson is retroactively applicable under these circumstances, the United States maintains that petitioner does not have a valid Johnson claim because his predicate offenses do not implicate the ACCA's residual clause or the career offender guideline's residual clause.

         DISCUSSION

         Johnson v. United States

         In Johnson v. United States,135 S.Ct. 2551 (2015), the Supreme Court addressed the constitutionality of a certain portion of the Armed Career Criminal Act (“the ACCA”). Under the ACCA, “a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a ‘violent felony.' ” Id. at 2555. The statute defines a violent felony as follows: “any crime punishable by imprisonment for a term exceeding one year ... that - (i) has as an element the use, attempted use, or threatened use of physical force against the person of another [commonly called the “force” clause]; or (ii) is burglary, arson, or extortion, involves use of explosives [commonly called the “enumerated offenses”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [commonly called the “residual” clause].” 18 U.S.C. § 924(e)(2)(B) (emphasis added). As noted, the portion of § 924(e)(2)(B)(ii) italicized by the Court is known as the residual clause. In Johnson, the Supreme Court held imposition of an enhanced sentence under the ...


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