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Garrett v. United States

United States District Court, S.D. Illinois

May 3, 2017

UNITED STATES OF AMERICA, Defendant. Criminal No. 11-cr-40004-JPG



         This matter comes before the Court on petitioner Jeremiah N. Garrett's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Pursuant to Administrative Order 176, counsel was appointed to represent the petitioner because his motion was based on Johnson v. United States, 135 S.Ct. 2551 (2015) (Doc. 3). Counsel has moved to withdraw on the basis that, even if Johnson applied retroactively on collateral review, she can make no non-frivolous argument in support of § 2255 relief for Garrett (Doc. 7). The Government has responded to counsel's motion to withdraw expressing no objection (Doc. 9). Garrett objects to counsel's withdrawal, maintains he is “actually innocent” of being a career offender, and argues counsel should remain in the case to file an amended petition on that basis (Doc. 11).

         I. Background

         On March 10, 2011, Garrett pled guilty to two counts of distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). At sentencing on June 9, 2011, the Court found that Garrett was a career offender under United States Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.1 based on one prior felony conviction for unlawful delivery of a controlled substance and one prior felony conviction for aggravated battery. This aggravated battery conviction was charged and adjudicated under the Illinois statute that prohibits aggravated battery by “knowingly causing bodily harm.” See 720 ILCS 5/12-3 & -4(b)(6) (2005).[1]Garrett's career offender status established a base offense level of 34. His offense level was reduced by three points under U.S.S.G. § 3E1.1(a) to 31 because Garrett timely demonstrated acceptance of responsibility for his offense. Considering Garrett's criminal history category of VI, established by his career offender status under U.S.S.G. § 4B 1.1, this yielded a sentencing range of 188 to 235 months in prison. The Court imposed a sentence of 216 months for each count, to run concurrently. See 21 U.S.C. § 841(b)(1)(C). Garrett did not appeal his sentence.

         Garrett filed this § 2255 motion after sending three letters to the Court in which he sought the benefit of Johnson, which he believed would cause the Court to revisit its decision that he was a career offender and resentence him without imposing the career offender enhancement (Case No. 11-cr-40004, Docs. 45-47). In response, the Court sent him a § 2255 motion form, which Garrett used to draft the complaint in this case.

         In his § 2255 motion, the petitioner raises the following claims:

• He is entitled to a drug reduction under 18 U.S.C. § 3582(c)(2) by virtue of Amendment 782 to the sentencing guidelines; and
• His three prior crimes do not qualify as “crimes of violence” sufficient to support career offender status.

         In counsel's motion to withdraw, she notes that Garrett's eligibility for a drug reduction was handled in his criminal case and that neither of his prior felony convictions is impacted by Johnson. The Government agrees, but Garrett objects. He claims he is “actually innocent” of being a career offender because one of his prior felony convictions was “stricken as a crime of violence” by United States v. Evans, 576 F.3d 766 (7th Cir. 2009) (per curiam).

         The Court conducts its preliminary review of Garrett's § 2255 motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts and its evaluation of counsel's motion to withdraw at the same time. Because it is plain from the motion and the record of the prior proceedings that the petitioner is not entitled to relief, the Court will deny Garrett's § 2255 motion and will grant counsel's motion to withdraw.

         II. § 2255 Standard

         The Court must grant a § 2255 motion when a defendant's “sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[r]elief under § 2255 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.'” United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).

         III. Analysis

         A. Applicability of Johnson In his § 2255 motion, the petitioner suggests that his due process rights were violated when the Court found his prior conviction for aggravated battery was a “crime of violence” supporting career offender status, and thus a higher guideline sentencing range. The career offender ...

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