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Martin v. United States

United States District Court, N.D. Illinois, Eastern Division

June 28, 2017

PATRICK MARTIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo Chief Judge

         Patrick Martin ("Petitioner") filed a petition to vacate his sentence under 28 U.S.C, § 2255 based on the U.S. Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). (R. 1.) For the reasons set forth below, the petition is denied.

         BACKGROUND

         In 2009, Petitioner and his co-defendant, John Gower, were charged in a two-count indictment with bank robbery in violation of 18 U.S, C. § 2113(a) (Count One) and using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count Two). United States v. Martin, No, 09 CR 807-2, R. 14. In October 2010, Petitioner entered a guilty plea to both counts of the indictment. Id., R. 48. As part of the plea, Petitioner admitted that he had robbed First National Bank in South Holland, Illinois, while armed with a 9mm Ruger handgun. Id. at 2-3. He also admitted that at the time of the robbery the bank was insured by the Federal Deposit Insurance Corporation ("FDIC"). Id. at 4. He further admitted that after robbing the bank, he and Gower led police on a high-speed chase, during which time he fired four shots from his handgun. Id. In the plea, Petitioner agreed to waive his trial rights as well as any arguments for appeal other than issues related to the validity of his plea and the sentence imposed by the Court. Id. at 9. In January 2011, the Court sentenced Petitioner to 90 months on Count One and 120 months on Count Two, to run consecutively. Id., R. 70. Petitioner did not appeal.

         In June 2016, Petitioner filed the present petition. (R. 1, Pet.) He claims that his Section 924(c) conviction must be vacated because the predicate offense for which he was convicted of using and carrying a firearm in furtherance of-bank robbery-does not constitute a "crime of violence" after Johnson.[1] (R. 3, Mem. at 1-6; R. 10, Suppl. at 1-10, ) He separately claims that the indictment in his case was "jurisdictionally defective" because the FDIC did not insure First National Bank for losses as a result of bank robbery, which in his view meant that there was an insufficient federal connection to his offense. (R. 3, Mem. at 7-17.) He relatedly claims that his trial counsel was ineffective because he failed to object to the indictment on this ground. (Id. at 14-17.) The government responds that Petitioner has not established an entitlement to relief under Section 2255.[2] (R. 11, Resp.)

         LEGAL STANDARD

         A federal prisoner can move to vacate his sentence on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Relief under this statute 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." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013).

         ANALYSIS

         I. Johnson claim

         In his first claim, Petitioner argues that his Section 924(c) conviction must be vacated in light of the Supreme Court's decision in Johnson, (R. 1, Pet. at 4; R, 10, Suppl. at 14.) Johnson addressed the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), which provides enhanced sentences for defendants convicted of possessing a firearm after a felony conviction in violation of 18 U.S.C. § 922(g) who have "three previous convictions by any court... for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). A defendant who meets this definition is subject to a mandatory prison sentence of 15 years to life. Id. The ACCA defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that meets one of the following requirements: (1) it "has as an element the use, attempted use, or threatened use of physical force against the person of another"; (2) it is burglary, arson, extortion, or an offense involving the use of explosives; or (3) it "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(i)-(ii). The first clause is commonly referred to as the "elements clause, " the second as the "enumerated crimes clause, " and the third as the "residual clause." In Johnson, the Supreme Court invalidated the ACCA's residual clause as unduly vague, but left intact the enumerated crimes clause and the elements clause. See Johnson, 135 S.Ct, at 2563 ("Today's decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the Act's definition of a violent felony."); Stanley v. United States, 827 F.3d 562, 564 (7th Cir. 2016) (Johnson holds that the residual clause is unconstitutionally vague. Johnson does not otherwise affect the operation of the Armed Career Criminal Act.").

         Similar to the ACCA, Section 924(c) contains an elements clause that defines "crime of violence" as an offense having "as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). Section 924(c) also contains a residual clause covering offenses that "involve [] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B). Given the similarities between the residual clauses contained in the ACCA and Section 924(c), the U.S. Court of Appeals for the Seventh Circuit has held that the residual clause in Section 924(c) is void for vagueness in light of Johnson. United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016).

         Petitioner argues that after Johnson, his Section 924(c) conviction is invalid because bank robbery no longer constitutes a "crime of violence" due to the Supreme Court's invalidation of the residual clause. (R. 10, Suppl. at 10-16.) He is correct that the government can no longer rely on the residual clause to prove that he committed a crime of violence. But Petitioner's Section 924(c) conviction remains valid if armed bank robbery constitutes a crime of violence under the elements clause of Section 924(c), which Johnson did not affect. See Johnson, 135 S.Ct. at 2563; see also United States v. Wheeler, 857 F.3d 742, 744 (7th Cir. 2017) ("Neither Cardena nor Johnson has anything to do with the elements clauses in § 924(c) and other statutes.").

         As stated above, an offense constitutes a crime of violence under the elements clause of Section 924(c) if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). "Physical force" in this context means "violent force-that is, force capable of causing physical pain or injury to another person." Curtis Johnson v. United States, 559 U.S. 133, 140-42 (2010) ("Curtis Johnson"). The federal bank robbery statute provides in relevant part:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, . . . ...

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