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Gower v. United States

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

July 24, 2017

JOHN RAY GOWER, Petitioner,


          Ruben Castillo Chief Judge

         John 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.


         In 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.

         On June 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[1](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, Reply.)


         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).


         Before 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).

         Petitioner's 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.[2] (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.

         I. Johnson claim

         In his 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.)

         Johnson 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.").

         Like 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 ...

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