United States District Court, S.D. Illinois
ORDER DENYING JOHNSON-BASED § 2255 PETITION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE
MICHAEL J. REAGAN UNITED STATES DISTRICT JUDGE.
No. 09-cr-30120-MJR (“the underlying case”),
Charlie Rodgers pled guilty to Counts 1 and 3 of an
indictment. Count 1 charged Rodgers with forcibly assaulting,
resisting, intimidating, or impeding a U.S. Marshals Service
Task Force Officer (James Ferry) while Ferry was engaged in
performance of official duties, making contact with Ferry,
and using a dangerous weapon during the incident, namely a
9-mm Smith and Wesson Semi-Automatic firearm, in violation of
18 U.S.C. 111(a)(1) and (b). Count 3 charged Rodgers with
“having previously been convicted of a felony
punishable by imprisonment for a term exceeding one year,
” knowingly possessing the 9-mm semi-automatic firearm
on August 11, 2009, in violation of 18 U.S.C. 922(g)(1).
See Indictment, Doc. 1 in the underlying case.
exchange for the guilty plea to Counts 1 and 3, the United
States (in addition to other concessions, such as
recommending a sentence toward the low end of the sentencing
range found by the Court) dismissed Count 2, which charged
use of a firearm during a crime of violence (i.e., assault of
a federal officer) in violation of 18 U.S.C. 924(c)(1)(A).
The undersigned sentenced Rodgers to 194 months in prison on
each of Counts 1 and 3, running concurrently. Judgment was
entered on December 17, 2010. No direct appeal was taken.
9, 2016, Rodgers filed a pro se petition to vacate,
set aside, or correct his sentence under 28 U.S.C. 2255. The
petition is based on Johnson v. United States,
--U.S. --, 135 S.Ct. 2551 (2015), which found
unconstitutional the residual clause of the Armed Career
Criminal Act, 18 U.S.C. 924(e)(2)(B)(ii), and Welch v.
United States, --U.S. --, 136 S.Ct. 1257 (2016), which
held Johnson retroactively applicable to cases on
collateral review. Rodgers asserts that his sentence
“violates the due process clause in light of
Johnson, ” because this Court improperly
enhanced the sentence based on Rodgers' “prior
Illinois convictions of Aggravated Fleeing and Aggravated
battery” (Doc. 1, p. 4).
threshold review of the petition, the undersigned appointed
counsel (Assistant Federal Public Defender Daniel G. Cronin)
to assist Rodgers in pursuing any Johnson-based
relief to which he might be entitled, noted several potential
procedural obstacles to relief, and set a briefing schedule.
On August 8, 2016, Mr. Cronin filed a detailed memorandum
explaining his belief that “there is no non-frivolous
basis for the relief sought” in the § 2255
petition (Doc. 4, p. 1).
September 2, 2016, the Court entered an Order which explained
Mr. Cronin's position, adjusted the briefing schedule,
and directed the United States to respond by October 11,
2016. The September 2nd Order directed Rodgers to
file a reply brief by November 11, 2016 identifying any basis
on which the Court can award the relief sought in his
petition (given Cronin's assessment) and also asked
Rodgers to supply a missing page from his petition. Rodgers
complied with the second directive (he promptly filed the
missing page) but not the first (he did not file a reply
brief addressing Cronin's position or the United
States' arguments). For the reasons stated below, the
Court denies Rodgers' § 2255 petition.
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 Rodgers is
not entitled to relief, so no hearing is needed.
the Court addresses whether Rodgers' 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
The one-year limitation period is triggered by the latest of
(1) the date on which the judgment of conviction becomes
(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
(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.
filed his petition on June 9, 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, 136 S.Ct. at 1265
(“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). Rodgers' petition is timely as to
all Johnson-premised arguments.
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).
maintains that there has been an error of constitutional
proportion. He insists that, after
Johnson, neither his aggravated
fleeing conviction nor his aggravated battery conviction
constitutes a “violent felony” under the Armed
Career Criminal Act (ACCA), 18 U.S.C. 924(e)(2), so he lacks
the necessary three predicates for sentence enhancement
thereunder. As the United States Court of Appeals for the
Seventh Circuit summarized in Hill v. Werlinger, 695
F.3d 644, 647 (7th Cir. 2012):
Under the ACCA, an offender who is convicted under 18 U.S.C.
§ 922(g) as a felon in possession of a firearm and has
three prior convictions for a violent felony or serious drug
offense receives a mandatory minimum 15- year prison
sentence. 18 U.S.C. § 924(e)(1).
the 2015 decision in Johnson, the ACCA (18 U.S.C.
924(e)(2)(B)) defined “violent felony” as any