United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Castillo Chief Judge
Ray Gower ("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, Pet.) For the
reasons set forth below, the petition is denied.
October 2009, Petitioner and his co-defendant, Patrick
Martin, were charged in a two- count indictment with armed
bank robbery in violation of 18 U.S.C. § 2113 (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. Gower, No. 09 CR 807-1, R. 14. In
October 2010, Petitioner entered a guilty plea to both counts
of the indictment. Id., R. 46. As part of the plea,
Petitioner admitted that on October 1, 2009, he participated
in the robbery of First National Bank in South Holland,
Illinois, with Martin. Id. He admitted that prior to
the robbery, he had purchased two firearms in Oklahoma for
use in the robbery, which he and Martin planned to commit in
the Chicago area. Id. He admitted to calling the
bank shortly before the robbery and telling the bank manager
to place $200, 000 in a garbage bag and explaining that
another man (Martin) would come inside the bank in a few
minutes to collect the bag. Id. at 2. He threatened
the manager that a bomb would be detonated if employees did
not cooperate with Martin when he entered the bank.
Id. He also admitted serving as the getaway driver
and leading the police on a high-speed chase, during which
Martin discharged his weapon several times. Id. at
3. He further admitted that he had possessed a firearm
"throughout the events that unfolded on October 1,
2009." Id. at 2. As part of the plea,
Petitioner agreed to plead guilty to both counts of the
indictment and to waive any issues for appeal other than
those pertaining to his plea or the sentence imposed by the
Court. Id. at 7. On January 6, 2011, the Court
sentenced Petitioner to 72 months on Count One and 120 months
on Count Two, to run consecutively. Id., R. 69.
Petitioner did not appeal.
9, 2016, Petitioner filed the present petition. (R. 1, Pet.)
He claims that his conviction under Section 924(c) must be
vacated because the predicate offense for which he was
convicted of possessing a firearm in furtherance of-bank
robbery-does not constitute a "crime of violence"
after Johnson(R. 1, Pet. at 4.) He alternatively claims
that his trial counsel was ineffective "for failing to
recognize his actual innocence" of the Section 924(c)
charge because he did not actually "use" a firearm
during the robbery. (R. 1, Pet. at 5.) The government filed a
response arguing that Petitioner has not established an
entitlement to relief under Section 2255. (R. 11, Resp.)
Petitioner filed a reply in support of his petition. (R. 17,
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).
turning to the petition, the Court must address
Petitioner's pending motion for appointment of counsel.
(R. 9, Mot.) Petitioner has no constitutional right to
counsel at this stage. See Resendez v. Knight, 653
F.3d 445, 446 (7th Cir. 2011) ("It is ... well
established that a criminal defendant enjoys [a] right to
counsel through his first appeal... but that, once the direct
appeal has been decided, the right to counsel no longer
applies." (citation omitted)); Jackson v, Cty. of
McLean, 953 F.2d 1070, 1071 (7th Cir. 1992) (observing
that "indigent civil litigants have no constitutional or
statutory right to be represented by counsel in federal
court"). Nevertheless, the Court has discretion to
appoint counsel for a person seeking relief under Section
2255 when "the interests of justice so require." 18
U.S.C. § 3006A(a)(2)(B). The Court will abuse its
discretion in denying a request for counsel only "if,
given the difficulty of the case and the litigant's
ability, [the petitioner] could not obtain justice without an
attorney, he could not obtain a lawyer on his own, and he
would have [ ] a reasonable chance of winning with a lawyer
at his side." Winsett v. Washington, 130 F.3d
269, 281 (7th Cir. 1997) (citation and internal alterations
omitted). Ordinarily, the litigant must make some effort to
obtain counsel on his own, or demonstrate that he has been
effectively precluded from doing so, before seeking the
appointment of counsel by the Court. Pruitt v. Mote,
503 F.3d 647, 654-55 (7th Cir. 2007).
motion is only one page long and asserts in general terms
that he needs counsel because his case is "complex"
and he has limited access to legal materials in
prison. (R. 9, Mot.) He makes no mention of
whether he has made any effort to obtain counsel on his own
or been hindered in his efforts to do so. As to his ability
to litigate the case on his own, the record reflects that he
completed high school and approximately two years of college.
Gower, No. 09 CR 807-1, R. 56 at 29. His filings in
this case reflect that he is fully literate and capable of
making cogent arguments in support of his position. His
Section 2255 petition and accompanying memorandum contain a
nuanced claim premised on the Supreme Court's decision in
Johnson, which itself demonstrates a familiarity
with federal sentencing law. His filings are all neatly typed
and contain citations to relevant statutes and case law. As
is detailed below, Petitioner's Johnson claim is
precluded by binding precedent from the U.S. Court of Appeals
for the Seventh Circuit and his ineffective-assistance claim
is significantly untimely. There is nothing before the Court
to suggest that Petitioner would have a "reasonable
chance of winning" if this Court were to appoint counsel
to represent him in this case. Winslett, 130 F.3d at
281. Under these circumstances, Petitioner's request for
counsel will be denied, and the Court turns to his petition.
first claim, Petitioner argues that his conviction on the
Section 924(c) charge must be vacated in light of the Supreme
Court's decision in Johnson. (R. 1, Pet. at 4.)
He believes that after Johnson, federal bank robbery
no longer qualifies as a "crime of violence" within
the meaning of Section 924(c). (R, 3, Mem. at 1-5.)
involved a challenge to the Armed Career Criminal Act
("ACCA"), 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). 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 residual clause of the ACCA 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.").
the ACCA, Section 924(c) has an elements clause and a
residual clause. The elements clause applies to offenses that
have "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). The
residual clause covers 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 two residual clauses, the Seventh
Circuit has held ...