United States District Court, C.D. Illinois, Springfield Division
ORDER AND OPINION
MYERSCOUGH, U.S. District Judge.
the Court is Petitioner Myron Zollicoffer's Motion for
Bond (d/e 10), 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 that require bail to
make the habeas remedy effective.
October 2002, Petitioner was charged by indictment with three
counts of distributing a substance containing crack cocaine,
in violation of 21 U.S.C. § 841(a)(1). United States
v. Zollicoffer, Central District of Illinois,
Springfield Division, Case No. 02-CR-30104 (d/e 1). On
February 14, 2003, Petitioner pleaded guilty to the charged
offenses. The Presentence Investigation Report prepared in
anticipation of Petitioner's sentencing found Petitioner
to be a career offender based on a prior conviction for
manufacture or delivery of cannabis and a prior conviction
for reckless discharge of a firearm. The career offender
enhancement increased Petitioner's base offense level
from 23 to 34. Case No. 02-30104, Presentence Investigation
Report (PSR), ¶ 27.
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 23, his
imprisonment guideline range would have been 92 to 115
months. On July 29, 2003, Petitioner was sentenced to 230
months of imprisonment. Although Petitioner appealed, he
later filed a motion to dismiss the appeal, which the Seventh
Circuit granted. See Case No. 02-30104 (d/e 43).
timely filed his first § 2255 petition in 2004. See
Zollicoffer v. United States, Central District of
Illinois, Springfield Division, Case No. 04-CV-03239 (d/e 1).
The motion was denied on February 22, 2005. Id. (d/e
2010, Petitioner filed an application to file a successive
§ 2255 petition in the Seventh Circuit, arguing that
Chambers v. United States, 555 U.S. 122 (2009),
mandated that his reckless discharge of a firearm conviction
could not be a crime of violence, thereby eliminating the
career offender enhancement. See Seventh Circuit
Case No. 10-1615. The Seventh Circuit denied the application,
finding Chambers did not announce a new
constitutional rule but rather defined a statutory term.
Id. (d/e 2).
then filed a petition pursuant to 28 U.S.C. § 2241 in
this Court. See Zollicoffer v. Rios, Central
District of Illinois, Springfield Division, Case No.
10-01238. Petitioner argued he was actually innocent of the
career offender enhancement because the guidelines were
incorrectly applied to find that his reckless discharge of a
firearm conviction qualified under the residual clause of
§ 4B1.2(a) as a crime of violence. The § 2241
petition was denied. Id. (d/e 7).
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. 2551, 2554, 2562-63 (2015). In light of
Johnson, the Seventh Circuit granted
Petitioner's application for authorization to file a
successive § 2255 motion. See Case No. 15-03337
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.” Id. 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
(C.D. Ill.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 reckless discharge of a firearm, as
defined by Illinois law, could not be a “crime of
violence, ” as that term was defined by the United
States Sentencing Guidelines, except under the residual
clause of § 4B1.2(a). United States v. Newbern,
479 F.3d 506, 509-11 (7th Cir. 2007), overruled by United
States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008).
Accordingly, if the Supreme Court promulgates a new rule in
Beckles that the residual clause's definition of
“crime of violence” 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 heard oral argument in 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'x 415,
416 (11th Cir. 2015), cert. granted, 136 S.Ct. 2510