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Grant v. United States

United States District Court, S.D. Illinois

January 11, 2017

DENZELL D. GRANT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING JOHNSON-BASED PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. 2255

          Michael J. Reagan United States District Judge

         A. Introduction

         In his underlying criminal case (Case No. 14-cr-30039-MJR), Denzell Grant pled guilty to interference with commerce by robbery in violation of 18 U.S.C. 1951(a) (Count 1, sometimes referred to as “Hobbs Act robbery”) and discharge of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. 924(c)(1)(A)(iii) (Count 2). The undersigned sentenced Grant to 180 total months in prison (150 months on Count 2 running consecutively to 30 months on Count 1), plus three years of supervised release. Judgment was entered on October 24, 2014.

         On June 21, 2016, Grant filed a pro se petition to vacate, set aside, or correct his sentence under 28 U.S.C. 2255 petition, along with a 40-page supporting memorandum. The petition was based on the United States Supreme Court's 2015 decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). Johnson declared unconstitutional a portion of a federal statute -- the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e)(2)(B)(ii). The Supreme Court held that the residual clause of ACCA violates the United States Constitution's guarantee of due process by being so vaguely worded as to not give ordinary people fair notice of the conduct it punishes. Grant claims that this ruling supports his request for relief under 28 U.S.C. 2255.

         On threshold review of Grant's petition, the undersigned set a briefing schedule and appointed counsel to assist Grant in pursuing any relief he may be entitled to under Johnson. In that Order, the Court noted several potential obstacles to § 2255 relief, if the petition was timely. First, Grant was not sentenced under the residual clause of the ACCA that was struck down in Johnson -- 18 U.S.C. 924(e)(2)(B)(ii). Instead, he was sentenced for violation of 18 U.S.C. 1951(a) (on Count 1, Hobbs Act robbery) and 18 U.S.C. 924(c)(1)(A)(iii) (on Count 2, discharging a firearm in furtherance of a crime of violence). So (especially at the time of this Court's threshold review Order), the application of Johnson beyond ACCA-based sentences was unclear. Second, in a written plea agreement, Grant had waived the right to challenge his sentence under 28 U.S.C. 2255, with two exceptions that did not appear to apply.

         On August 29, 2016, Grant's counsel (Assistant Federal Public Defender Daniel Cronin) filed a detailed memorandum addressing the concerns raised by the Court and explaining his reasons for concluding that “there is no non-frivolous basis for the relief sought in Petitioner's pro se § 2255 petition” (Doc. 5, p. 1). Cronin argues that Grant's petition was timely filed. As to Grant's waiver of the right to collateral review, Cronin offers a potential basis on which to sidestep the waiver which Grant executed, but he essentially concedes that the plain language of the waiver “seems to preclude consideration of Mr. Grant's § 2255 claims on the merits” (Doc. 5, p. 5).

         If Grant's petition is not barred by the § 2255 waiver, and assuming that Johnson extends to the residual clause Grant cites to (18 U.S.C. 924(c)(3)(B)), another impediment to relief exists. 18 U.S.C. 924(c)(3) defines the term “crime of violence” to mean a felony offense that either (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. 924(c)(3). Cronin asserts that Grant's Hobbs Act robbery may no longer qualify as a crime of violence under the residual-like clause of § 924(c)(3)(B) (as Grant argues), but that offense would still qualify as a crime of violence under the elements or “force” clause of § 924(c)(3)(A). For all these reasons, Mr. Cronin was compelled to opine that there is no solid basis on which this Court can award the relief sought in Grant's § 22255 petition.

         The United States (the Government) responded on October 7, 2016 (see Doc. 8). Grant filed two replies (see Docs. 7 and 9). The issues have been thoroughly discussed, and the matter was fully ripe as of November 9, 2016. For the reasons stated below, the Court dismisses Grant's petition.

         B. Preliminary Issues

         Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, this Court must determine whether an evidentiary hearing is warranted. Not every petition warrants a hearing. Boulb v. United States, 818 F.3d 334, 339 (7th Cir. 2016). See also Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (“It is well-established that a district court need not grant an evidentiary hearing in all § 2255 cases, ” such as where the record conclusively shows the prisoner is not entitled to relief.); Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (to justify a hearing, petition must be accompanied by a detailed affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions). The record before this Court conclusively reveals that Grant is not entitled to relief, so no hearing is needed.

         Next, the Court addresses whether Grant's petition was timely filed. It was. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year period of limitations for prisoners to file petitions seeking to modify or vacate their sentences under 28 U.S.C. 2255. 28 U.S.C. 2255(f); Purvis v. United States, 662 F.3d 939, 942 (7th Cir. 2011). Accord Clay v. United States, 537 U.S. 522, 524 (2003) (“A motion by a federal prisoner … under 28 U.S.C. § 2255 is subject to a one-year time limitation that generally runs from ‘the date on which the judgment of conviction becomes final.'“).

         The one-year limitation period is triggered by the latest of four events:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. 2255(f). The statute does not provide for extensions of time.[1]

         Grant filed his petition on June 21, 2016 -- within the one-year period set forth in § 2255(f)(3), based on the Supreme Court's June 26, 2015 decision in Johnson, which has been declared retroactively applicable to cases on collateral review. Welch v. United States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016) (“Johnson is … a substantive decision and so has retroactive effect … in cases on collateral review.”); Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015) (Johnson announced a new substantive rule which applies retroactively on collateral review). The Court treats the petition as timely-filed.

         C. Analysis

         (1) Overview

         Analysis starts with the proposition that relief under § 2255 is limited. It is “available only in extraordinary situations, ” requiring an error of constitutional or jurisdictional magnitude or a fundamental defect that resulted in a complete miscarriage of justice. Blake v. United States, 723 F.3d 870, 879 (7th Cir. 2013). Accord United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014).

         Grant vehemently asserts that there has been an error of constitutional proportion here. He insists that, after Johnson, his Hobbs Act robbery conviction no longer qualifies as a crime of violence, so his “§ 924(c) conviction cannot stand” (Doc. 7, p. 5), and the Court must enter a “judgment of acquittal” on that count (Doc. 9, p. 4). The essence of Grant's argument is that the residual clause of 18 U.S.C. 924(c)(3)(B) is materially the same as the residual clause of ACCA struck down in Johnson, so the residual clause of 924(c)(3)(B) is unconstitutionally vague, and his conviction and sentence under the latter are invalid.

         (2) Waiver of Right to File 2255 Petition

         Before reaching the merits of this argument, the Court must confront an obvious procedural impediment - Grant waived the right to collaterally challenge his sentence pursuant to 28 U.S.C. 2255.[2] In July 2014, Grant executed a written plea agreement in which he acknowledged that he had rights to contest his sentence under Title 18 and Title 28, as well as certain appeal rights. The plea agreement then stated (Doc. 8-2; bold in original, italics added here):

The Government agrees to recommend a sentence of not more than five (5) years imprisonment on Count 1 of the Indictment. Based on this concession, the Defendant agrees to waive his appeal and collateral review rights….
However, in exchange for the recommendations and concessions made by the United States in this plea agreement, the Defendant knowingly and voluntarily waives his right to contest any aspect of his conviction and sentence that could be contested under … Title 28, or under any other provision of federal law, except that if the sentence imposed is in excess of sixty (60) months' on ...

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