United States District Court, S.D. Illinois
EDWARD C. LOVING, Petitioner,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
R. HERNDON, DISTRICT JUDGE:
matter is before the Court on petitioner Edward C.
Loving's motion to vacate, set aside, or correct
sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1) and
Assistant Federal Public Defender David L. Brengle's
motion to Withdraw (Doc. 6). Petitioner was allowed until
December 5, 2016 to respond. To date, the petitioner has not
on the record and the following, the Court GRANTS the motion
to withdraw and DENIES petitioner's § 2255 motion.
defendant pleaded guilty to one count of Possession with
Intent to Distribute Cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) (USA v.
Loving, 3:07-cr-30073 Doc. 31). On February 8, 2008, the
Court sentenced defendant to a term of 188 months'
imprisonment to run concurrent with the terms of imprisonment
previously imposed by the United States District Court for
the Southern District of Illinois in Docket No. 98-30119-GPM,
and by Winnebago County Circuit Court in Docket No.
98-CF-294. (Cr. Doc. 39).
the defendant was sentenced, he was determined to be a career
offender. The defendant's career offender status was
based on the defendant having three prior felony convictions,
one for robbery and two for the manufacture or delivery of a
controlled substance (Cr. Doc. 36). According to his
presentence report, petitioner had the following three
predicate offense convictions under §4B1.2:
1. On October 9, 1992, Petitioner was convicted of Robbery in
St. Clair County case 92-CF-1045 (Cr. Doc. 36, ¶ 40).
2. On April 8, 1997, Petitioner was convicted of Unlawful
Possession of Cannabis with Intent to Deliver in Madison
County case, 97-CF-736 (Cr. Doc. 36, ¶ 47).
3. On February 1, 1998, Petitioner was convicted of
Manufacture or Delivery of Cocaine in Winnebago County case
98-CF-294 (Cr. Doc. 36, ¶ 48).
27, 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 David L. Brengle entered his appearance on
behalf of petitioner (Doc. 4). Thereafter, AFPD Brengle filed
a motion to withdraw as attorney (Doc. 6). AFPD Brengle
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.
Johnson v. United States
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 that imposition of
an enhanced sentence under the residual clause of the ACCA
violates due process because the vagueness of the clause
“denies fair notice to defendants and invites arbitrary
enforcement by judges.” Johnson, 135 S.Ct. at
2557. The Supreme Court in Johnson did not strike
any other provision of the ACCA. Johnson, 135 S.Ct.
Johnson involved the residual clause of the ACCA, it
also has implications for defendants who received a
sentencing adjustment based on a cross reference in U.S.S.G.
§ 2K2.1 to the residual clause in the career-offender
guideline, U.S.S.G. § 4B1.2(a). This is because the
career-offender guideline contains an identically worded
residual clause, U.S.S.G. § 4B1.2(a)(2). The Seventh
Circuit found that under Johnson, the residual
clause in the ...