United States District Court, N.D. Illinois, Eastern Division
ERNEST D. SHIELDS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
Rubén Castillo Chief Judge.
D. Shields (“Petitioner”) is serving a 15-year
sentence for possessing a firearm following a felony
conviction in violation of 18 U.S.C. § 922(g). He filed
a motion to vacate his sentence under 28 U.S.C. § 2255
(“the petition”) alleging a claim based on
Johnson v. United States, 135 S.Ct. 2551 (2015), and
a claim of ineffective assistance of counsel. (R. 1, Pet.)
For the reasons set forth below, the petition is denied.
approximately 8:00 p.m. on January 10, 2011, Chicago Police
Officers Craig Coglianese and David Bachler were on routine
patrol on the south side of Chicago in an unmarked police
vehicle. United States v. Shields, 789 F.3d 733,
738-41 (7th Cir. 2015). They observed Petitioner's
vehicle parked and partially blocking a crosswalk, which
violated a Chicago municipal ordinance. Id. The
officers stopped their vehicle alongside Petitioner's.
Id. Officer Coglianese then exited his vehicle and
approached Petitioner, who was sitting in the driver's
seat, and asked to see his driver's license. Id.
Petitioner handed the officer his license, then exited his
vehicle and walked toward the rear of the vehicle with
Officer Coglianese. Id. When Petitioner reached the
back of the police vehicle, he did not stop to talk to the
officer and instead began running east down an adjacent
street. Id. Officer Coglianese began chasing him.
Id. As Officer Coglianese followed Petitioner down
an alley, he saw Petitioner take a firearm out of his right
coat pocket. Id. Shortly thereafter, the officer
caught up to Petitioner and pushed him to the ground.
Id. Officer Bachler arrived on the scene a minute or
so later, and the two officers placed Petitioner in
handcuffs. Id. When they rolled him over they
discovered a loaded .22-caliber handgun underneath him on the
ground. Id. This was the same gun that Officer
Coglianese had observed Petitioner remove from his pocket.
Id. The officers placed Petitioner in the back of
their police vehicle, and Officer Coglianese read Petitioner
his Miranda rights. Id. Officer Coglianese then
asked him, “Why are you running with a gun?” and
Petitioner responded, “I shouldn't have had that
weapon on me.” Id.
22, 2011, Petitioner was indicted by a grand jury for
possession of a firearm by a felon in violation of 18 U.S.C.
§ 922(g). Id. The indictment also alleged that
Petitioner was subject to a mandatory minimum sentence of 15
years under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), due to his
prior criminal record. Id. Prior to trial,
Petitioner filed a motion to suppress the firearm and his
statement following his arrest. Id. In that motion,
he argued that the traffic stop conducted by the officers was
illegal, that the officers had conducted an illegal search of
his person, and that the statement he made to police about
the gun was involuntary. Id. At an evidentiary
hearing on the motion, Officers Coglianese and Bachler both
testified, describing how Petitioner had fled and how they
had recovered the firearm from him. Id. Petitioner
did not testify at the hearing. United States v.
Shields, No. 11 CR 440, ECF No. 77. The Court denied the
motion in a written opinion, finding that the officers had
credibly and consistently testified about their recovery of
the firearm and the statement Petitioner had made after being
given a Miranda warning. Id., ECF No. 60.
four weeks before the scheduled trial, Petitioner obtained
new counsel, Andrea Gambino, who filed a motion for
reconsideration of the denial of his suppression motion or,
in the alternative, a request that the Court reopen the
suppression hearing to allow Petitioner to testify.
Id., ECF Nos. 72, 75. Gambino also filed a motion to
dismiss the indictment on Second Amendment grounds.
Id., ECF No. 76. She filed a separate motion to
dismiss, arguing that federal jurisdiction could not be
established beyond a reasonable doubt due to the lack of
evidence showing that the weapon Petitioner possessed had
traveled in interstate commerce. Id., ECF No. 90. At
a subsequent hearing, Gambino asked for a continuance of the
trial so that she could have more time to file replies in
support of the two motions. Id., ECF No. 142. The
Court denied the request, stating, “[E]ven though you
are a very capable attorney and have tried mightily, I
don't see where, if I allowed you two months, two years
to file a reply brief, you're going to change my thinking
on either motion.” Id. at 3. Thereafter, the
Court denied the motions. Shields, 789 F.3d at 740.
jury trial began on March 25, 2013, and lasted three days.
Id. On the second day of the trial, Petitioner
stipulated that he had incurred a prior felony conviction
before the date of his arrest. Id. At the close of
the evidence, the jury found Petitioner guilty of possession
of a firearm by a felon. Id. The presentence report
(“PSR”) calculated that Petitioner had a total
offense level of 33 and a criminal history category of VI,
resulting in an advisory guidelines range of 235 to 293
months in custody. Id. The PSR also noted that
Petitioner had three prior “violent felony”
convictions under Illinois law and was therefore subject to a
mandatory minimum sentence of 15 years to life under the
ACCA. Id. Prior to the sentencing hearing,
Petitioner discharged Gambino and, at his request, the Court
permitted him to proceed pro se. Id. at
740-41 & n.9. Among other arguments, Petitioner argued
that the ACCA enhancement violated Alleyne v. United
States, 133 S.Ct. 2151 (2013), because the fact of his
prior convictions had not been determined by the jury.
Id. at 741. The Court found the ACCA enhancement
applicable, and sentenced him to the mandatory minimum
sentence of 15 years, followed by five years of supervised
appealed, asserting various errors at trial and sentencing.
Id. at 741-51. The U.S. Court of Appeals for the
Seventh Circuit affirmed his conviction and sentence in all
respects. Id. On November 2, 2015, the U.S. Supreme
Court denied his petition for a writ of certiorari.
Shields v. United States, 136 S.Ct. 420 (2015). On
November 1, 2016, Petitioner filed the present petition. (R.
1.) He first claims that his enhanced sentence is invalid in
light of the Supreme Court's decision in
Johnson. (R. 1, Pet. at 6-15.) He also claims that
his trial attorney, Gambino, provided him with ineffective
assistance on various grounds. (Id. at 16-29.)
federal prisoner can move to vacate his sentence on
“the ground that the sentence was imposed in violation
of the Constitution or laws of the United States . . . or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). “Relief under this statute is available
only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a
fundamental defect has occurred which results in a complete
miscarriage of justice.” Blake v. United
States, 723 F.3d 870, 878-79 (7th Cir. 2013).
first claims that his 15-year sentence is invalid in light of
Johnson and that he is entitled to be
resentenced. (R. 1, Pet. at 1-15.) The ACCA provides
enhanced sentences for defendants convicted of violating 18
U.S.C. § 922(g) who have “three previous
convictions by any court . . . for a violent felony or a
serious drug offense.” 18 U.S.C. § 924(e)(1).
“Violent felony” is defined as “any crime
punishable by imprisonment for a term exceeding one
year” that meets one of the following requirements: (1)
it “has as an element the use, attempted use, or
threatened use of physical force against the person of
another”; (2) it is burglary, arson, extortion, or an
offense involving the use of explosives; or (3) it
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(i)-(ii). The first clause is
commonly referred to as the “elements clause, ”
the second as the “enumerated crimes clause, ”
and the third as the “residual clause.”
Johnson, the Supreme Court invalidated the residual
clause as unduly vague, but left intact the enumerated crimes
clause and the elements clause. See Johnson, 135
S.Ct. at 2563 (“Today's decision does not call into
question application of the [ACCA] to the four enumerated
offenses, or the remainder of the Act's definition of a
violent felony.”); Stanley v. United States,
827 F.3d 562, 564 (7th Cir. 2016) (“Johnson
holds that the residual clause is unconstitutionally vague.
Johnson does not otherwise affect the operation of
the Armed Career Criminal Act.”). There is no question
that Petitioner was convicted of violating 18 U.S.C. §
922(g), or that he has convictions for aggravated battery,
residential burglary, and armed robbery under Illinois law.
He argues, however, that none of these offenses can be
characterized as violent felonies after Johnson. (R.
1, Pet. at 11-15.) The Court addresses each conviction in
Aggravated Battery Conviction
first argues that his 1994 Illinois aggravated battery
conviction no longer qualifies as a violent felony under the
ACCA. (R. 1, Pet. at 7-12.) Because the residual clause has
been invalidated, Petitioner's aggravated battery
conviction must fall under either the elements clause or the
enumerated crimes clause to count as an ACCA predicate.
Aggravated battery is obviously not one of the enumerated
crimes, 18 U.S.C. § 924(e)(2)(B)(ii), which leaves the
elements clause as the only possibility. As stated above, a
prior conviction falls under the elements clause if it
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” Id. The Supreme Court has
interpreted “physical force” in this context to
mean “violent force-that is, force capable of
causing physical pain or injury to another person.”
Curtis Johnson v. United States, 559 U.S. 133,
140-42 (2010) (“Curtis Johnson”).
determining whether a prior conviction qualifies as an ACCA
predicate, courts ordinarily apply a “categorical
approach, ” which focuses solely on the text of the
statute underlying the conviction. United States v.
Mathis, 136 S.Ct. 2243, 2248 (2016). Application of this
approach “is straightforward when a statute sets out a
single (or ‘indivisible') set of elements to define
a single crime.” Id. The Court simply
“lines up that crime's elements alongside those of
the generic offense and sees if they match.”
Id. The analysis becomes difficult, however, when
the relevant statute “ha[s] a more complicated
(sometimes called ‘divisible') structure, making
the comparison of elements harder.” Id. at
2249. In other words, “[a] single statute may list
elements in the alternative, and thereby define multiple
crimes, ” some of which involve violent force while
others do not. Id. In such cases, the Court employs
a “modified categorical approach.” Id.
Under this approach, the Court may look to “a limited
class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted
of.” Id. But even under the modified
categorical approach, the question is not “what the
defendant did in fact, ” but rather, “whether the
elements of the crime . . . bring the conviction within the
scope of the recidivist enhancement.” Stanley,
827 F.3d at 565; see also Descamps v. United States,
133 S.Ct. 2276, 2287 (2013) (“Congress intended the
sentencing court to look only to the fact that the defendant
had been convicted of crimes falling within certain
categories, and not to the facts underlying the prior
convictions.” (citation omitted)).
Illinois law, a person commits battery “if he or she
knowingly without legal justification by any means (1) causes
bodily harm to an individual or (2) makes physical contact of
an insulting or provoking nature with an individual.”
720 Ill. Comp. Stat. 5/12-3. The offense is elevated to
aggravated battery if certain conditions are met, including
where the offender knew the victim to be a peace officer,
knew the victim to be pregnant, or committed the offense on
public property. 720 Ill. Comp. Stat. 5/12-3.05. A conviction
based on the first prong of the statute-i.e.,
“causing bodily injury”-has as an element the
use, attempted use, or threatened use of physical force, and
therefore qualifies as a violent felony under the elements
clause of the ACCA. Hill v. Werlinger, 695 F.3d 644,
650 (7th Cir. 2012). By contrast, a conviction based on the
second prong of the Illinois statute-i.e., involving
“physical contact of an insulting or provoking
nature”-does not qualify as a violent felony for
purposes of the ACCA. See United States v. Evans,
576 F.3d 766, 768 (7th Cir. 2009) (explaining that a
conviction under the second prong of Illinois aggravated
battery statute-for conduct like “spit[ting] on a
pregnant woman”-does not qualify as a predicate offense
for federal sentencing purposes); United States v.
Saunders, No. 15 C 8587, 2016 WL 1623296, at *2 (N.D.
Ill. Apr. 25, 2016) (“Battery [under Illinois law] does
not automatically qualify as a violent felony because there
is an avenue by which battery may occur without
these different ways of violating the statute, the Seventh
Circuit has held that the Illinois aggravated battery statute
is divisible, permitting application of the modified
categorical approach. See United States v. Lynn, ___
F.3d ___, 2017 WL 1101089, at *9 (7th Cir. Mar. 24, 2017);
Stanley, 827 F.3d at 566; United States v.
Rodriguez-Gomez, 608 F.3d 969, 973 (7th Cir. 2010);
see also Bell v. United States, No. 16-CV-736-NJR,
2017 WL 553013, at *3 (S.D. Ill. Feb. 10, 2017) (looking to
charging document to determine whether petitioner's
Illinois conviction for aggravated battery to a police
officer fell under the elements clause of the ACCA);
Rogers v. United States, 179 F.Supp.3d 835, 841-42
(C.D. Ill. 2016) (same).
consulting the charging document in Petitioner's case, it
is clear that Petitioner's aggravated battery conviction
was premised on the first prong of the statute, as it
involved bodily harm to the victim. The indictment charged
that Petitioner “intentionally and knowingly without
legal justification caused bodily harm to Willie Edwards
while using deadly weapons, to wit: a hammer handle and a
stick with nails on its end, by beating Willie Edwards about
the head and body.” (R. 7-1, State Ct. Records at 4.)
The Court thus finds that Petitioner's conviction has as
an element the use, attempted use, or threatened use of
physical force, and therefore qualifies as a violent felony
notwithstanding Johnson. See Lynn, 2017 WL
1101089, at *10 (holding that defendant's convictions for
aggravated battery involving the “causing bodily
harm” prong of the Illinois battery statute “were
properly classified as violent felonies” under the
elements clause of the career offender guideline);
Stanley, 827 F.3d at 565 (observing that
“Stanley's [Illinois] conviction for aggravated
battery of a peace officer . . . is outside the scope of
Johnson” because it is classified as a violent
felony under the elements clause of the ...