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Grammer v. United States

United States District Court, C.D. Illinois, Peoria Division

October 17, 2016

DUSTIN M. GRAMMER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER

          JOE BILLY McDADE United States Senior District Judge

         The 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.

         There 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.

         Background

         On 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).

         The 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.[1] (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. 4-2).

         On June 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 4).[2] 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. 1).

         On June 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 this time.

         On 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).

         Legal Standards

         Under 28 U.S.C. § 2255, a federal prisoner may challenge a sentence:

“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 appeal).

         Discussion

         I. Section 2255 Motion

         Petitioner's § 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.[3] 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.

         A. Waiver

         Additionally, 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 ...


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