United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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).
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.
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.
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.
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
(2) is burglary, arson, extortion, or involves use of
(3)is a crime that “otherwise involves conduct that
presents a serious potential risk of physical injury to
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 ...