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United States v. Smith

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

April 3, 2017

UNITED STATES OF AMERICA, Respondent,
v.
MICHAEL SMITH, Petitioner.

          MEMORANDUM OPINION AND ORDER

          Robert W. Gettleman United States District Judge

         Petitioner Michael Smith has filed a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence.[1] The government opposes the motion. For the reasons discussed below, petitioner's motion is denied.

         BACKGROUND

         Petitioner pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) on August 7, 2007. The court found that petitioner had at least three prior convictions that qualified as “violent felonies” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”), and sentenced him to the mandatory minimum 180 months' imprisonment. Petitioner's predicate convictions were a 1993 aggravated battery, a 1997 residential burglary, a 2000 residential burglary, and a 2002 aggravated battery. All of the convictions were under Illinois law. Had the court not found that petitioner was an Armed Career Criminal, his maximum sentence under 18 U.S.C. § 922(g) would have been 120 months' imprisonment.

         DISCUSSION

         Petitioner filed the instant motion on June 24, 2016. In his motion, petitioner asserts that after Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), his predicate convictions no longer qualify as violent felonies under the ACCA. According to petitioner, it follows that his 180-month sentence is unconstitutional.

         I. Legal Standard

         Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255. Relief pursuant to § 2255, however, “is appropriate only for ‘an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'” See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). When considering a § 2255 motion, the district court reviews the record and draws all reasonable inferences in favor of the government. See Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992).

         II. Analysis

         A. Timeliness

         Pursuant to § 2255(f), a motion to vacate, set aside, or correct a sentence must be filed within a one-year period that begins to run from the latest of the following dates: (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). Petitioner's motion is timely under the third ground.

         On June 26, 2015, the Supreme Court held in Johnson that the ACCA's residual clause is unconstitutionally vague. See 135 S.Ct. 2551. Johnson announced a new substantive rule of constitutional law, which was made retroactively applicable in Welch. See 136 S.Ct. 1257. Accordingly, petitioner had until June 26, 2016, to file a Section 2255 motion. He did so on June 24, 2016. Respondent concedes that petitioner's motion is timely, but argues that it fails on the merits.

         B. Petitioner's Claims

         According to respondent, petitioner's predicate offenses are unaffected by Johnson because the court did not resort to the ACCA's residual clause (which was invalidated by Johnson) in determining that petitioner's prior offenses were violent felonies. At the ...


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