United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Bucklo United States District Judge.
me is defendant Jerome Dixon's second motion to amend,
correct, or vacate his sentence pursuant to 28 U.S.C. §
2255. The Seventh Circuit authorized the motion based on its
preliminary conclusion that Dixon had made a prima facie
showing that he may be entitled to relief under Johnson
v. United States, 135 S.Ct. 2551 (2015). For the
following reasons, the motion is denied.
December 22, 2011, Dixon pled guilty to possessing a firearm
after having previously been convicted of a felony in
violation of 18 U.S.C. § 922(g). On May 14, 2012, he was
sentenced to 180 months' imprisonment. Under the terms of
his plea agreement, Dixon agreed that he qualified as an
Armed Career Criminal under § 924(e) based on two
previous convictions for serious drug offenses and a third
conviction for aggravated battery of a police officer in
violation of 720 ILCS 5/12-4(B)(6).
filed his first § 2255 motion on May 14, 2013, asserting
1) that he should not have been sentenced as an armed career
criminal because under Buchmeier v. United States,
581 F.3d 561 (7th Cir. 2009), his previous convictions were
not properly considered predicate offenses, and 2) that his
attorney was ineffective. See Case No. 13-cv-3591,
07/28/14 Memorandum Opinion and Order (DN 18). I denied the
motion without reaching the merits of the Buchmeier
claim because I concluded that by his plea agreement, Dixon
waived the right to challenge his sentence in a collateral
attack. I also concluded that although Dixon's
ineffective assistance of counsel claim was outside the scope
of his waiver, it failed on the merits because he identified
neither facts nor law to support it. Id. at 8.
unclear whether Dixon's present § 2255 motion
reasserts his Buchmeier claim. On the one hand, he
“incorporates in full the documents filed in the
Seventh Circuit which state the case history and the nature
and substance of the § 2255 claim.” Mot. at 1 (DN
5). But those documents point in different directions. In his
pro se motion for leave to file a second or successive §
2255 motion, Dixon answered “no” to the question
“[d]id you present any of the claims in this
application in any previous petition, application, or motion
for relief under 28 U.S.C. § 2254 or § 2255?”
DN 1 at 3. On the other hand, the memorandum
supporting his motion for leave argues that relief is
appropriate under Buchmeier as well as under
Johnson. Id. at 7, 8, 10. Accordingly, I
assume (as the government does) that the present motion
articulates both claims.
there appears to be no dispute that Dixon may not relitigate
his Buchmeier claim, a point Dixon tacitly concedes
in his counseled reply, which makes no reference at all to
Buchmeier. Instead, Dixon responds to the
government's argument that his Buchmeier claim
is time-barred by insisting that his Johnson claim
is timely-a point the government does not dispute. I thus
move on to the merits of Dixon's Johnson claim.
Seventh Circuit explained in Stanley v. United
States, 827 F.3d 562, 564 (7th Cir. 2016), the
“sole holding of Johnson is that the residual
clause [of the ACCA] is invalid.” Specifically, the
Johnson “does not have anything to do with the
proper classification of drug offenses or the operation of
§ 924(e)(2)(B)(i), known as the elements clause, which
classifies as a violent felony any crime punishable by a year
or more in prison that ‘has as an element the use,
attempted use, or threatened use of physical force against
the person of another.'”
Id. The court went on to hold that Stanley's
conviction for aggravated battery of a peace officer-the very
offense Dixon claims should not, under Johnson, have
triggered his ACCA sentence-was “outside the scope of
Johnson” because the “district court
counted this conviction under the elements clause.”
Id. at 565.
too, in this case, each of Dixon's convictions was
“counted” under the elements clause, and Dixon
makes no assertion to the contrary. Instead, he argues that
aggravated battery of a peace officer is not categorically a
crime of violence, and that proper application of the
“modified categorical approach” shows that he was
not, in fact, convicted of a “violent felony.”
But Stanley forecloses this argument. Indeed, the
court explained that “Hill v. Werlinger, 695
F.3d 644, 649-50 (7th Cir. 2012), concludes that the Illinois
offense of aggravated battery of a peace officer is a violent
felony because the use of force is an element of the offense.
Johnson has nothing to say about that
subject.” Stanley, 827 F.3d at 565.
is on all-fours with, and controls, this case. Dixon insists
that the Seventh Circuit's later decision in Yates v.
United States, 842 F.3d 1051 (7th Cir. 2016), somehow
compels “a comprehensive methodology...to assess
predicate offenses under the ACCA”
post-Johnson, Reply at 11-12, but Yates
does nothing of the sort. Indeed, Yates reiterated
that Johnson “does not affect the elements
clause of § 924(e).” Id. at 1052 (citing
Dixon suggests that Stanley is at odds with the
Supreme Court's disposition of the defendant's claim
in Welch v. United States, 136 S.Ct. 1257 (2016).
Whatever the merits of that argument, however, I am bound to
follow controlling Seventh Circuit law.
foregoing reasons, Dixon's motion for relief under §
2255 is denied. I further decline to ...