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Bell v. United States

United States District Court, S.D. Illinois

February 10, 2017

ARMON BELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.

         This matter is currently before the Court on the pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Armon Bell (Doc. 1). Also before the Court is the motion to withdraw filed by Assistant Federal Public Defender Thomas Gabel (Doc. 10). For the reasons explained below, Mr. Gabel's motion to withdraw is granted, and the § 2255 petition is denied.

         Background

         Petitioner Armon Bell was indicted on January 19, 2007, on one count of being a felon in possession of a firearm. United States v. Bell, SDIL Case No. 3:07-cr-30014, Doc. 1. He pleaded guilty to the charge five months later. Id. at Doc. 22. The Government and Bell determined, and the presentence investigation report (“PSR”) later confirmed, that Bell was subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his criminal history that included two prior convictions for aggravated battery and a prior conviction for unlawful delivery of a controlled substance. Id. at Docs. 22, 28. Based on his status as an armed career criminal, Bell faced a mandatory minimum sentence of fifteen years of imprisonment. Id. at Doc. 28. At sentencing on September 17, 2007, District Judge G. Patrick Murphy adopted the PSR in full and concluded that Bell was an armed career criminal. Id. at Doc. 32. Judge Murphy sentenced Bell to the statutory minimum of fifteen years in prison. Id. at Docs. 27, 31, 32.

         On July 1, 2016, Bell filed a habeas petition under 28 U.S.C. § 2255 challenging his enhanced sentence as an armed career criminal based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Doc. 1). In Johnson, the Supreme Court held that “the imposition of an enhanced sentence under the residual clause of [the Armed Career Criminal Act] violates due process because the clause is too vague to provide adequate notice.” Price v. United States, 795 F.3d 731, 732 (7th Cir. 2015) (citing Johnson, 135 S.Ct. at 2557). That holding is categorically retroactive to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016); Price, 795 F.3d at 734. Bell argues that as a result of Johnson, he no longer has three qualifying convictions under the ACCA, and he should be resentenced (Doc. 1).

         The Court determined that Bell's § 2255 petition survived preliminary review, ordered the Government to respond to the petition, and appointed Assistant Federal Public Defender Thomas Gabel to represent Bell (Doc. 2). In its response, the Government sets forth three arguments as to why Bell's petition should be denied: (1) he waived his right to bring a collateral attack based on Johnson, (2) his claims have been procedurally defaulted, and (3) in the alternative, his claims should be dismissed on the merits because none of his three qualifying convictions were based on the residual clause of the ACCA (Doc. 6). In turn, Mr. Gabel filed a motion seeking to withdraw as Bell's attorney after determining that none of Bell's predicate offenses were classified as a crime of violence under the residual clause of the ACCA (Doc. 10).

         Discussion

         The Court starts with the Government's first argument and agrees that Bell waived his right to collaterally challenge his sentence pursuant to 28 U.S.C. § 2255. See United States v. Bell, SDIL Case No. 3:07-cr-30014, Doc. 22.[1] A defendant can waive his right to collateral review as part of a plea agreement, and such waivers are enforced unless the plea agreement was involuntary, the court relied on a constitutionally impermissible factor (like the defendant's race), the sentence exceeded the statutory maximum, or the defendant claimed ineffective assistance of counsel in connection with negotiation of the plea agreement. Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (citing Jones v. United States, 167 F.3d 1142, 1144-45 (7th Cir. 1999)). Bell does not argue, and the Court does not believe, that any of these exceptions apply (see Doc. 1). Accordingly, the waiver dooms Bell's § 2255 petition.

         Even if the Court were to find that Bell's claims were not waived, however, he is not entitled to relief because none of his qualifying convictions were based on the residual clause of the Armed Career Criminal Act. 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 or a serious drug offense. 18 U.S.C. § 924(e). Bell does not dispute that his previous conviction for unlawful delivery of a controlled substance qualifies as a “serious drug offense” under the ACCA (see Doc. 1). Therefore, the issue for the Court is whether Bell's previous convictions for aggravated battery were classified as “violent felonies” under the residual clause of the ACCA.

         The ACCA defines a “violent felony” in three ways. It is any crime punishable by imprisonment for a term exceeding one year, that:

(1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; or
(2) is burglary, arson, extortion, or involves use of explosives; or
(3)is a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

         18 U.S.C. § 924(e)(2)(b). Definition one is referred to as the “elements clause”; definition two is referred to as the “enumerated crimes clause”; and definition three is the “residual clause.” Johnson invalidated enhanced sentences under the ACCA where the previous convictions were defined as violent felonies under the residual clause.See Stanley v. United States, 827 F.3d 562 (7th Cir. 2016) (explaining that Johnson does not affect convictions classified under the enumerated crimes clause or the elements clause of the Sentencing Guidelines or the Armed Career Criminal Act). Thus, in order for Bell's aggravated ...


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