United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. Gettleman United States District Judge
Michael Smith has filed a motion pursuant to 28 U.S.C. §
2255 to vacate his sentence. The government opposes the
motion. For the reasons discussed below, petitioner's
motion is denied.
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
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.
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).
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
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.
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