United States District Court, C.D. Illinois, Urbana Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Anthony Jordan's Motion for Bond
(d/e 9), in which he requests bond pending a determination of
the motion he filed pursuant to 28 U.S.C. § 2255.
Petitioner's motion is GRANTED. Petitioner has shown that
he has raised a substantial constitutional claim upon which
he has a high probability of success and that exceptional
circumstances exist which require bail to make the habeas
remedy effective. Although Petitioner, in his underlying
criminal case, entered into a plea agreement that included a
waiver of his right to collaterally attack his sentence, the
Court finds that the waiver does not preclude
Petitioner's challenge to his status as a career
offender, which is grounded in the rights bestowed upon him
by the Due Process Clause.
February 2004, Petitioner was charged by indictment with one
count of distributing more than five grams of a substance
containing crack cocaine, in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 841(b)(1)(B). United States v.
Jordan, Central District of Illinois, Urbana Division, Case
No. 04-CR-20008 (hereinafter, Case No. 04-20008), Indictment
(d/e 1). On May 12, 2004, Petitioner and the Government
entered into a plea agreement, in which Petitioner agreed to
plead guilty to the charged offense. Case No. 04-20008, Plea
Agreement and Stipulation of Facts (Plea Agreement) (d/e 7),
| 4. Pursuant to the plea agreement, Petitioner also waived
his "right to collaterally attack the conviction and/or
sentence." Case No. 04-20008, Plea Agreement, 1 9. In
the Presentence Investigation Report prepared in anticipation
of Petitioner's sentencing, Petitioner's total
offense level was increased from 28, the base offense level
that applied because Petitioner was deemed responsible for
20.5 grams of cocaine base, to 34 on the basis that
Petitioner was a career offender. Case No. 04-20008,
Presentence Investigation Report (PSR), 1 20. Although only
two qualifying felony offenses are needed to label a
defendant a career offender under § 4B1.1 of the United
States Sentencing Guidelines, the PSR listed three felony
convictions supporting Petitioner's classification as a
career offender- one for aggravated battery, one for mob
action, and one for domestic battery. See Case No.
04-20008, PSR, 1 20.
on his total offense level of 34 and his criminal history
category of VI, which would not have changed absent his
career offender designation, Petitioner's imprisonment
guideline range at sentencing was 262 to 327 months. Had
Petitioner's total offense level been 28, his
imprisonment guideline range would have been 140 to 175
months. On July 13, 2006, Petitioner was sentenced to 262
months of imprisonment. See Case No. 04-20008,
Judgment (d/e 68). Although Petitioner appealed, he later
filed a motion to dismiss the appeal, which the Seventh
Circuit granted. See Case No. 04-20008, Order (d/e
timely filed his first § 2255 petition in February 2008.
See Jordan v. United States, Central District of
Illinois, Springfield Division, Case No. 08-CV-02048
(hereinafter, Case No. 08-02048), Motion Under 28 U.S.C.
§ to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody (d/e 1). The motion was denied on April
10, 2008. See Case No. 08-02048, Opinion (d/e 6). Petitioner
subsequently filed two motions pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure seeking to vacate the denial
of his initial § 2255 motion. See Case No.
08-02048, Motion for Relief from Judgment Under Federal Rules
of Civil Procedure Rule 60(b)(6) (d/e 20); Case No. 08-02048,
Motion for Relief from Judgment Under the Federal Rules of
Civil Procedure Rule 60(b)(4) (d/e 49). Both motions were
denied. See Case No. 08-02048, Opinion (d/e 26);
Case No. 08-02048, Order (d/e 58).
2015, the Supreme Court decided Johnson v. United
States, in which it held that a residual clause of the
Armed Career Criminal Act (ACCA), which classified an offense
as a "crime of violence" if it involved
"conduct that presents a serious potential risk of
physical injury to another, " was unconstitutionally
vague. 135 S.Ct. at 2554, 2562-63. In light of
Johnson, the Seventh Circuit granted
Petitioner's application for authorization to file a
successive § 2255 motion. See Order (d/e 2).
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). The Seventh
Circuit has not yet 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." IcL 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 (CD. 111. 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.
Johnson, but after Petitioner's sentencing, the
Seventh Circuit held that battery, as defined by Illinois
law, was not a "crime of violence, " as that term
was defined by the United States Sentencing Guidelines,
because the offense could be committed by making
"physical contact of an insulting or provoking nature
with an individual." United States v. Evans,
576 F.3d 766, 767-68 (7th Cir. 2009) (citing 720 ILCS 5/
12-3(a)). Because a person commits domestic battery in
Illinois if he knowingly and without justification
"makes physical contact of an insulting or provoking
nature with any family or household member, " 720 ILCS
5-12-3.2(a), domestic battery does not qualify as a
"crime of violence." Further, the Seventh Circuit
has held that the Illinois offense of mob action could only
be classified as a "crime of violence" under the
residual clause of the career offender guideline. See
United States v. Cole, 298 F.3d 659, 661 (7th Cir. 2002)
(noting that the Illinois mob action statute "does not
have as a necessary element the use or threatened use of
physical force against a person" and that mob action is
not specifically enumerated as a crime of violence in the
career offender guideline). The Illinois mob action statute
encompasses several crimes with varying elements.
See 720 ILCS 5/25-1. The statute is therefore
divisible, meaning that the Court can use a modified
categorical approach, which allows the Court to look at
certain documents, such as the indictment, jury instructions,
and plea agreement, to determine which specific offense
Petitioner committed. See Mathis v. United States,
136 S.Ct. 2243, 2249 (2016). But because all offenses
encompassed within the Illinois mob action statute can be
committed without the use or attempted use of violent
physical force against another person, Illinois mob action
still fails to classify as a "crime of violence"
under the modified categorical approach. Accordingly, if the
Supreme Court promulgates a new rule in Beckles that
the "crime of violence" definition in the United
States Sentencing Guidelines is unconstitutionally vague and
determines that this rule applies retroactively, Petitioner
will not have the two felony convictions needed to be
classified as a career offender. The Government does not
dispute this conclusion in its opposition to Petitioner's
Motion for Bond.
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), extends to the United States Sentencing
Guidelines. See United States v. Hurlburt, 835 F.3d
715, 725 (7th Cir. 2016) (discussing cases). Further, the
Supreme Court is scheduled to hear a case this month
involving whether Johnson should be extended to the
guidelines from the lone circuit that has held that
Johnson does not apply to the Sentencing Guidelines.
See Beckles v. United States, 616 F.App'x415,
416 (11th Cir. 2015), cert, granted, 136 S.Ct. 2510
(2016). Given the overwhelming consensus that the rule
promulgated in Johnson extends to the guidelines,
the chance that Petitioner will prevail on his pending §
2255 motion is high.
Government argues that Petitioner's chance of success is
nothing more than a "coin flip" because no court of
appeals has held that the extension of Johnson to
the United States Sentencing Guidelines is to be applied
retroactively. However, the fact that the Supreme Court made
Johnson retroactive, see Welch v. United
States, 136 S.Ct. at 1268, leads this Court to the
conclusion that a holding in Beckles that the
guidelines are subject to vagueness challenges, which will
result in the residual clause of the career offender
guideline being deemed unconstitutionally vague, will also be
made retroactive, especially given that successive §
2255 motions, if not based on newly discovered evidence, must
be based on "a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable." 28
U.S.C. § 2255(h)(2) (emphasis added). In short, the
Court finds that Petitioner has shown a high probability of
success on the constitutional claim on which his pending
§ 2255 motion is based.
Exceptional circumstances justify ...