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Rodgers v. United States

United States District Court, S.D. Illinois

March 16, 2017




         A. Introduction

         In Case 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.

         In 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.

         On June 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).

         On 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).

         On 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.

         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 Rodgers is not entitled to relief, so no hearing is needed.

         Next, 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 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]

         Rodgers 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.



         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).

         Rodgers 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).

         Before the 2015 decision in Johnson, the ACCA (18 U.S.C. 924(e)(2)(B)) defined “violent felony” as any ...

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