United States District Court, C.D. Illinois, Springfield Division
JESSE A. STOLDORF, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MYERSCOUGH, UNITED STATES DISTRICT JUDGE
cause is before the Court on Petitioner Jesse A.
Stoldorf's Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255(f)(3) (d/e 1).
Because Petitioner is not entitled to relief under
Johnson v. United States, 135 S.Ct. 2551 (2015), the
Motion is DENIED. The Court GRANTS a certificate of
March 2005, a jury found Petitioner guilty of possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g).
The Probation Office prepared a Presentence Investigation
Report (PSR). United States v. Stoldorf, Case No.
04-20048 (d/e 37) (hereinafter, Crim.). The PSR determined
that Petitioner was an Armed Career Criminal pursuant to 18
U.S.C. § 924(e) based on two 1994 burglary convictions
in Montana (Mineral County District Court Case Nos. C-637 and
C-649-5) and a 1998 conviction in Illinois for home invasion,
residential burglary, and intimidation (Shelby County Case
No. 98-CF-49). Crim., PSR ¶¶ 25, 28, 29,
31.Neither the PSR nor the sentencing
transcript indicate whether the prior convictions qualified
as predicate offenses under the elements, enumerated, or
residual clauses of the Armed Career Criminal Act.
Armed Career Criminal, Petitioner faced a statutory mandatory
minimum of 15 years' imprisonment to life imprisonment.
Crim., PSR ¶ 70 (citing 18 U.S.C. §§ 922(g),
924(e)(1)). Petitioner's advisory sentencing guideline
range was 235 to 293 months' imprisonment. Crim., PSR
¶ 71. On July 5, 2005, former United States District
Judge Michael P. McCuskey sentenced Petitioner to a term of
264 months' imprisonment. Crim., Judgment (d/e 39) (dated
July 7, 2005).
appealed, arguing only that the prosecutor violated the
Constitution by exercising a peremptory challenge on the
basis of race. United States v. Stoldorf, No.
05-3020, 2006 WL 2355906 (7th Cir. Aug. 15, 2006). The
Seventh Circuit affirmed the judgment and sentence.
24, 2016, Petitioner filed the Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255(f)(3)
(d/e 1) at issue herein. The Government responded to the
Motion (d/e 3), and Petitioner filed a Reply (d/e 4). On
November 22, 2016, the Court appointed counsel to represent
Petitioner. On December 22, 2016, counsel filed a
Supplemental Response (d/e 6), to which the Government filed
a response (d/e 7).
argues he is entitled to relief because his two prior Montana
burglary convictions and the Illinois residential burglary
conviction do not qualify as violent felonies under the Armed
Career Criminal Act.
person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. Relief under § 2255 is an extraordinary remedy
because a § 2255 petitioner has already had “an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007).
Post-conviction relief under § 2255 is therefore
“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.” Harris v. United States, 366 F.3d
593, 594 (7th Cir. 2004) (internal quotation marks omitted).
explanation of the Armed Career Criminal Act is necessary to
put Petitioner's claim in context. Generally, the penalty
for the offense of being a felon in possession of a firearm,
18 U.S.C. § 922(g), is up to 10 years' imprisonment.
18 U.S.C. § 924(a)(2). However, if a defendant violates
§ 922(g) and has three previous convictions for a
violent felony or a serious drug offense, or both, the Armed
Career Criminal Act increases the sentence to a term of
imprisonment of not less than 15 years and up to life. 18
U.S.C. § 924(e)(1); Johnson, 135 S.Ct. at 2555.
The Act defines a violent felony as:
[A]ny crime punishable by imprisonment for a term exceeding
one year . . . that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another [.]
18 U.S.C. § 924(e)(2)(B) (emphasis added). The
underlined portion is referred to as the “residual
clause.” The other portions are referred to as the
“elements clause” (18 U.S.C. §
924(e)(2)(B)(i)) and the “enumerated clause” (the
portion listing burglary, arson, extortion, and offenses that
involve the use of explosives). The United States Supreme
Court recently found the residual clause unconstitutional.
Johnson v. United States, 135 S.Ct. 2551, 2563
(2015) (holding that “imposing an increased sentence
under the residual clause of the Armed Career Criminal Act
violates the Constitution's guarantee of due
determining whether a prior conviction qualifies as a violent
felony, courts generally apply the categorical approach,
meaning the court looks only to the fact of the conviction
and the statutory definition of the prior offense. Taylor
v. United States, 495 U.S. 575, 602 (1990). When
determining whether a prior conviction, such as burglary,
qualifies under the enumerated clause, the court compares the
elements of the statute forming the basis of the prior
conviction with the elements of the generic crime of
burglary. See id. at 599; Descamps v. United
States, 133 S.Ct. 2276, 2281 (2013). When the
statute's elements are ...