United States District Court, C.D. Illinois, Urbana Division
TRACY C. ROBERTSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DARROW UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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
Legal Standard on a Motion to Reduce 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).
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).
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.
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 ...