United States District Court, S.D. Illinois
JEREMIAH N. GARRETT, Plaintiff,
UNITED STATES OF AMERICA, Defendant. Criminal No. 11-cr-40004-JPG
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
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.
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).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.
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.
§ 2255 motion, the petitioner raises the following
• 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
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).
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.
§ 2255 Standard
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).
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 ...