United States District Court, C.D. Illinois, Peoria Division
DUSTIN M. GRAMMER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER
BILLY McDADE United States Senior District Judge
matter before the Court is Petitioner, Dustin M.
Grammer's Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody. (Doc. 1). Petitioner was convicted for conspiracy to
manufacture and distribute methamphetamine. Because
Petitioner had two prior convictions for domestic battery, he
qualified as a career offender under the Sentencing
Guidelines and is currently serving a sentence of 171
months' imprisonment. Petitioner argues that under the
Supreme Court's holdings in Johnson v. United
States, 135 S.Ct. 2251 (2015), and Welch v. United
States, 136 S.Ct. 1257 (2016), his domestic battery
convictions do not qualify as crimes of violence; therefore,
he alleges his sentence is unlawful. For the reasons stated
below, Petitioner's motion is DENIED.
are three additional pending motions that also need to be
resolved. First, Petitioner moved for an extension of time to
respond to the Court's request for supplemental briefing.
(Doc. 6). Because the Court can resolve the matter without
the supplemental briefing, the motion is DENIED. Second,
Petitioner moved for an appointment of counsel. (Doc. 6)
However, Petitioner offered no proof that he had attempted to
find counsel on his own; therefore, Petitioner's motion
is DENIED. Third, Respondent moved to stay consideration of
the motion pending the Supreme Court's anticipated
decision in Beckles v. United States. (Doc. 5).
Because Petitioner's § 2255 Motion is not affected
by the issues in Beckles, Respondent's Motion to
Stay is DENIED.
August 14, 2012, Petitioner pleaded guilty to Conspiracy to
Manufacture and Distribute Methamphetamine, in violation of
21 U.S.C. §§ 841 and 846. (Judgment, United
States v. Grammer, No. 12-cr-10015-003 (C.D. Ill. 2000),
Doc. 119 at 1). The plea agreement included several waivers,
including a waiver of Petitioner's right to challenge his
sentence by a collateral attack. (Plea Agreement and
Stipulation of Facts, Doc. 70 at 5-7, No. 12-cr-10015-003).
He was originally sentenced to lifetime imprisonment.
(Judgment, Doc. 119 at 2, No. 12-cr-10015-003). This was
later reduced to 171 months pursuant to a retroactive change
in his sentencing guideline range. (Amended Judgment Reducing
Sentence, Doc. 202, No. 12-cr-10015-003).
sentence was based off of the Court's calculated
guidelines range of 262 months to 327 months of imprisonment,
based on a total offense level of 34 and a criminal history
category of VI. (Presentence Report, No. 12-cr-10015-003,
Doc. 117 at 25). The Court's calculation of
Petitioner's total offense level included a career
offender sentence enhancement. The Court concluded that
Petitioner qualified as a career offender because of two
prior convictions: a domestic battery conviction in Tazewell
County, Illinois in 1999 and a second domestic battery
conviction in Tazewell County, Illinois in 2005. (Presentence
Report, No. 12-cr-10015-003, Doc. 117 at 11). Both
convictions for domestic battery were for violations of
subsection (1) of Illinois's statute, which states:
“a person commits domestic battery if he or she
knowingly without legal justification by any means causes
bodily harm to any family or household member, ” in
violation of 720 ILCS § 5/12-3.2(a)(1). (Doc. 4-1; Doc.
20, 2016, Petitioner filed Motion under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. (Doc. 1). Petitioner brought forth one
argument: that “My 4B1.1 enhancement is under [the]
residual clause [and] is now not usable.” (Doc. 1 at
Petitioner alleged that his sentence was unlawful because of
the recent United States Supreme Court's decisions in
Johnson v. United States, 135 S.Ct. 2251 (2015), and
Welch v. United States, 136 S.Ct. 1257 (2016). (Doc.
21, 2016 the Court found on initial review that
Petitioner's claim was not wholly without merit;
therefore, the Court required the government to respond.
(Doc. 3). The Respondent filed its Response on June 28, 2016.
(Doc. 4). The Respondent made four claims: 1) that
Johnson cannot be applied to the United States
Sentencing Guidelines on collateral review, 2) that
Petitioner had procedurally defaulted this argument, 3) that
Petitioner had waived his right to collaterally attack his
sentence, and 4) that Petitioner's claim was meritless
because he had been convicted as a career offender under the
force clause. Id. Petitioner had twenty-eight days
to reply to the Response. Petitioner did not file a reply,
nor did Petitioner seek an extension of time to file a
response. Additionally, Petitioner did not request counsel at
August 29, 2016, the United States Court of Appeals for the
Seventh Circuit issued an opinion in United States v.
Hurlburt, No. 14-cr-62-JDP, 2016 U.S. App. LEXIS 15963.
In Hurlburt, the Seventh Circuit found on direct
review that the Sentencing Guideline's residual clause,
under U.S.S.G. § 4B1.2, was void for vagueness under
Johnson. Id. On September 15, 2016, the
Court issued a text order requesting that the parties address
whether Hurlburt applied to Petitioner's §
2255 Motion. On September 19, Respondent filed supplemental
briefing arguing that Hurlburt did not apply and
moved for a stay of the proceedings if the Court could not
resolve the case on “procedural, waiver, or merits
grounds.” (Doc. 5). On September 29, 2016, Petitioner
moved for a ninety day extension to respond to the
Court's Hurlburt text order and to request
counsel. (Doc. 6).
28 U.S.C. § 2255, a federal prisoner may challenge a
“upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to
vacate, set aside or correct the sentence.”
§ 2255(a). However, § 2255 relief is appropriate
only for errors of law that are 1) jurisdictional, 2)
constitutional, or 3) constitute a “fundamental defect
which inherently results in a complete miscarriage of
justice.” United States v. Garcia, No.
3:13-cr-52-JD, 2016 U.S. Dist. LEXIS 97000 (N.D. Ind. July
25, 2016) (citing Harris v. United States, 366 F.3d
593, 594 (7th Cir. 2004). A § 2255 motion is not a
substitute for a direct appeal. Id. (citing
Olmstead v. United States, 55 F.3d 316, 319 (7th
Cir. 1995); see also Bousley v. United States, 523
U.S. 614, 621 (1998) (rejecting the use of habeas as a direct
Section 2255 Motion
§ 2255 Motion is denied for two separate reasons, both
of which support the denial of his motion. First, Petitioner
waived his right to collateral review. Second, even if
Petitioner had not waived his right to collateral attack,
Petitioner's two prior convictions are considered
“crimes of violence” under the force clause,
which is distinct from the residual clause. Therefore, they
support Petitioner's sentence enhancement for being a
career offender. Because both of these issues are
dispositive, the petition is denied.
the Petitioner's Motion is denied because the Petitioner
waived his right to collateral review. “A defendant may
validly waive both his right to a direct appeal and his right
to collateral review under § 2255 as part of his plea
agreement.” Keller v. United States, 657 F.3d
675, 681 (7th Cir. 2011). Waivers of direct appeal and
collateral appeal are generally enforceable. Hurlow v.
United States, 726 F.3d 958, 964 (7th Cir. 2013). The
Seventh Circuit has recognized few exceptions to the general
enforceability, which include: involuntary plea agreements,
the district court's reliance on an impermissible factor
(like race), the sentence exceeds the statutory maximum, or