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Shields v. United States

United States District Court, N.D. Illinois, Eastern Division

March 31, 2017

ERNEST D. SHIELDS, Petitioner,


          Rubén Castillo Chief Judge.

         Ernest 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.


         At 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.

         On June 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.

         Approximately 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.

         The 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 release. Id.

         Petitioner 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.)


         A 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).


         I. Johnson claim

         Petitioner first claims that his 15-year sentence is invalid in light of Johnson and that he is entitled to be resentenced.[1] (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.”

         In 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 turn.

         A. Aggravated Battery Conviction

         Petitioner 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”).

         In 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)).

         Under 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.[2] 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 force.”).

         Given 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).

         In 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 ...

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