United States District Court, C.D. Illinois, Rock Island Division
DARROW, UNITED STATES DISTRICT JUDGE
the Court are Petitioner Estanislao's motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255, ECF No. 1; and his counsel's motion to
withdraw as attorney, ECF No. 4. For the following reasons,
Petitioner's request for relief is DENIED, and
counsel's motion to withdraw GRANTED.
a Mexican national, was convicted of burglary in Cook County,
Illinois, on August 22, 1990. He was deported on April 8,
1993. At some point thereafter, he illegally re-entered the
country. He was convicted of domestic battery on March 28,
2002 in Cook County, and was again removed on August 2, 2002.
At some point afterward he again illegally re-entered the
country. He was convicted of drug offenses in Illinois in
2013 and 2014, and transferred to Immigrations and Customs
Enforcement (“ICE”) custody on August 28, 2014.
was charged via federal indictment on September 23, 2014 with
illegal reentry into the United States in violation of 8
U.S.C. §§ 1326(a), (b)(1), and (b)(2). Indictment,
CR ECF No. 1. He pleaded guilty to that charge on December 4,
2014. Dec. 4, 2014 CR Minute Entry. The Presentence
Investigation Report (“PSR”), CR ECF No. 9,
calculated Estanislao's United States Sentencing
Guideline (“USSG”) range as follows: a base
offense level of 8, 2014 U.S.S.G. §2L1.2(a), PSR ¶
15; a 12-level enhancement because he had been convicted of a
crime of violence (the domestic battery), 2014 U.S.S.G.
§2L1.2(b)(1)(A)(ii), PSR ¶ 16; and a three-level
reduction for acceptance of responsibility, 2014
USSG§3E1.1(a), PSR ¶¶ 22, 23; for a total
offense level of 17, PSR ¶ 62; at a criminal history
category IV, PSR ¶ 35; for a guideline range of 37 to 46
months, PSR ¶ 62. The statutory maximum sentence for a
violation of 8 U.S.C. §§ 1326(a) and (b)(2) is 20
years. On April 16, 2015, he was sentenced to 37 months of
imprisonment, with no supervised release to follow. Apr. 16,
2015 CR Minute Entry. Written judgment entered on the same
date. Judgment, CR ECF No. 11.
filed the instant motion on June 30, 2016. Because his motion
purported to be based on Johnson v. United States,
135 S.Ct. 2551 (2015), the Court appointed the Federal Public
Defender for the Central District of Illinois to represent
him. Jul. 1, 2016 Minute Entry. On August 23, 2016, the
Federal Public Defender moved to withdraw on the ground that
there was no legal basis to Estanislao's motion. Mot.
Legal Standard on a Motion to Vacate Sentence Under 28 U.S.C.
U.S.C. § 2255, “the federal prisoner's
substitute for habeas corpus, ” Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012), permits a prisoner
incarcerated pursuant to an Act of Congress to seek that his
sentence be vacated, set aside, or corrected if “the
sentence was imposed in violation of the Constitution or laws
of the United States, or . . . the court was without
jurisdiction to impose such sentence, or . . . the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack[.]” 28 U.S.C.
§ 2255(a). See Webster v. Daniels, 784 F.3d
1123, 1124 (7th Cir. 2015) (“As a rule, the remedy
afforded by section 2255 functions as an effective substitute
for the writ of habeas corpus that it largely
replaced.”). When presented with a § 2255 motion,
a district court must hold an evidentiary hearing on the
applicant's claim, and make findings of fact and
conclusions of law. 28 U.S.C. § 2255(b). However,
“[i]t is well-established that a district court need
not grant an evidentiary hearing in all § 2255
cases.” Martin v. United States, 789 F.3d 703,
706 (7th Cir. 2015). The court need not hold a hearing if
“the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b). Additionally, if the
judge examining the petitioner's application for relief
does not dismiss the motion after preliminary review, she
must order the United States attorney to file an answer or
other responsive pleading within an appropriate period of
time. S. 2255 R. 4(b).
to the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a federal prisoner seeking to vacate
his sentence typically has one year to do so, from the date
upon which the judgment of his conviction became final. 28
U.S.C. § 2255(f)(1). However, if the right he asserts
has been newly recognized and made retroactively applicable
by the Supreme Court to cases on collateral review, he has
one year from the date the Supreme Court recognized the
right. Id. § 2255(f)(3).
seeks relief from his sentence on the ground that
Johnson, which found the residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1), void for vagueness, also requires that his
12-level guideline enhancement for having committed a crime
of violence be set aside. Pet. 2. However, his petition
fails, partly for the reason that his counsel cites in
seeking to withdraw.
petition, although coming more than a year after the judgment
of his conviction became final, is nonetheless timely,
because he seeks to rely on the new rule of law announced by
Johnson, which was announced less than a year before
he filed the petition. Johnson held that the
ACCA's definition of a “violent felony, ”
used for purposes of a sentencing enhancement under the
statute, was partly void for vagueness under the Fifth
Amendment. Johnson, 135 S.Ct. at 2557. The
unconstitutionally vague portion describes a violent felony
as “otherwise involv[ing] conduct that presents a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii).
argument fails for at least two reasons. First, as counsel
observes, the definition of “crime of violence”
as the term was used by the version of U.S.S.G. §2L1.2
applied to Estanislao, does not include a “residual
clause” of the kind the Supreme Court found
unconstitutional in Johnson. Second, as the Supreme
Court has recently clarified, the guidelines are not subject
to vagueness challenges under the Due Process Clause.
Beckles v. United States, 137 S.Ct. 886, 892 (2017).
Thus, even if the language in the guideline definition of
“crime of violence” used to apply
Estanislao's specific offense characteristic had been
identical to the ACCA's language, it would not be subject
to collateral attack. ...