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Robertson v. United States

United States District Court, C.D. Illinois, Urbana Division

July 24, 2017

TRACY C. ROBERTSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SARA DARROW UNITED STATES DISTRICT JUDGE.

         Before the Court are Petitioner Robertson's motion to vacate, set aside, or correct his sentence pursuant to 18 U.S.C. § 2255, ECF No. 1; his amended motion to the same effect, ECF No. 6; and his motion for status conference, ECF No. 11. For the reasons that follow, his amended motion is DENIED, and the other two motions are MOOT.

         BACKGROUND[1]

         On April 26, 2010, police officers in Kankakee, Illinois served a search warrant on Robertson's house. They found cocaine, marijuana, a scale, $1, 400 in cash, and a Colt .45, along with ammunition. Robertson had sustained prior felony convictions.

         On June 9, 2010, Robertson was charged by federal indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Indictment, CR ECF No. 1. On February 22, 2011, Robertson pleaded guilty to the charge via a written plea agreement, CR ECF No. 12, filed pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Feb. 22, 2011 Minute Entry. The agreement contained Robertson's admission to having possessed the firearm after sustaining a felony conviction in violation of 18 U.S.C. § 922(g)(1), and also his concession that he had sustained three prior felony convictions that counted as violent felonies or serious drug offenses as defined by 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act (“ACCA”). Plea Agr. 3-5. As a result, Robertson and the government agreed, while the statutory maximum punishment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) is ten years, having sustained three ACCA predicate felonies required a statutory mandatory minimum sentence of fifteen years. Id. at 4. The parties further agreed that Robertson's United States Sentencing Guideline (“USSG”) level should be calculated as follows: a base offense level of 34, because he was an armed career criminal who possessed the weapon in connection with a drug offense, 2010 USSG §4B1.4(b)(3)(A), Plea Agr. 5; less three levels for acceptance of responsibility, 2010 USSG §§3E1.1(a), (b), Plea Agr. 5; for a total offense level of 31; and a criminal history category VI, since he was an armed career criminal, 2010 USSG §4B1.4(c)(2), Plea Agr. 6; for a guideline sentencing range of 188 to 235 months, id. The parties indicated their agreement that Robertson be sentenced at the low end of the guideline range. Id. at 6.

         Robertson consented to change his plea before a magistrate judge; on February 22, 2011 he did so, and the magistrate judge recommended that the district judge accept the plea. Feb. 22, 2011 CR Minute Entry. On June 3, 2011, the district judge did so, sentencing Robertson to 188 months' incarceration. Jun 3, 2011 CR Minute Entry. Written judgment entered on June 6, 2011. CR ECF No. 27.

         On March 8, 2016, Robertson petitioned this Court to reduce his sentence pursuant to 28 U.S.C. § 2255, basing his request on the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015). The Court appointed the Federal Public Defender to represent Robertson, Mar. 8, 2016 Text Order, and ordered him to file an amended petition, Mar. 9, 2016 Text Order. That petition is now fully briefed.

         DISCUSSION

         I. Legal Standard on a Motion to Reduce Sentence Under 28 U.S.C. § 2255

         28 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).

         Pursuant 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).

         II. Analysis

         Robertson argues that one of the felony convictions used to support his sentence enhancement under the ACCA no longer qualifies as an ACCA predicate, and his sentence must correspondingly be reduced, because attempted residential burglary only qualifies as an ACCA predicate under the “residual clause” of the ACCA, which clause Johnson found unconstitutionally vague. Am. Pet. 1. The government appropriately concedes that Robertson's petition is timely because filed within one year of Johnson, Resp. 6, but argues that the claim is barred by a collateral attack waiver, id. at 7-8; is procedurally defaulted, id. at 8-10; and fails on its merits because the attempted burglary conviction “may still qualify as a violent felony under the statute's enumerated clause, ” id. at 11. Because, as explained below, the Court finds that Robertson is entitled to no relief on the merits of his claim, the Court addresses only the merits.

         Robertson's argument-that his prior felony conviction for attempted residential burglary can no longer be an ACCA predicate after Johnson-may well be valid, as far as it goes. The government argues otherwise, but includes a full page of citations to adverse precedent from other district courts and other circuits. Resp. 13-14. However, the Court need not reach the question, because, although neither Robertson nor the government seem to have noticed it, Robertson had sustained more than three felony convictions that qualified as ACCA predicates at the time ...


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