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Robertson v. United States

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

August 31, 2017




         Before the Court is Petitioner Robertson's motion for reconsideration of the Court's order denying his petition for habeas corpus relief under 28 U.S.C. § 2255, ECF No. 13. For the following reasons, the motion is GRANTED. Robertson's motion to cite authority, ECF No. 16, is MOOT.


         The Order whose reconsideration Robertson urges, ECF No. 12, contains a detailed summary of Robertson's offense of conviction and sentencing, which the Court will not repeat here. Jul. 24, 2017 Order 1-2. The point at issue in Robertson's motion is the number and nature of felony convictions he had already sustained when he was sentenced for being a felon in possession of a firearm pursuant to a written plea agreement on February 22, 2011. CR ECF No. 12; see 18 U.S.C. § 922(g)(1). In the plea agreement, Robertson conceded that he had possessed the firearm after sustaining three prior felony convictions that counted as violent felonies or serious drug offenses under 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act (“ACCA”). Plea Agr. 3-5. Robertson and the government agreed at the time that his three ACCA predicate offenses mandated a 15-year minimum sentence, rather than the 10-year statutory maximum ordinarily applied to violations of 18 U.S.C. § 922(g). Id. at 4. Robertson and the government agreed that he should be sentenced at the low end of his United States Sentencing Guideline (“USSG”) range, 188 months, or 8 months above his mandatory minimum. Id. at 6. On June 6, 2011, he was duly sentenced to 188 months' incarceration. Judgment, CR ECF No. 27.

         Robertson filed his pro se petition in this Court under 28 U.S.C. § 2255 on March 8, 2016, arguing that the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 569 (2015), had made one of his predicate offenses no longer ACCA-qualifying, and that his sentence should be set aside. Pet., ECF No. 1. Robertson filed an amended petition with the assistance of counsel, ECF No. 6, in which he argued specifically that one of his three predicate offenses, for attempted residential burglary, could only have qualified as a predicate offense under the ACCA's “residual clause, ” which Johnson found unconstitutional, and that this attempted residential burglary did not qualify as “enumerated” burglary either. Am. Pet. 3-8. The Court ordered the government to respond, Mar. 16, 2016 Text Order. The government did so, opposing Robertson's request for relief on the grounds that Robertson had waived his right to collaterally attack his sentence, Resp. 7-8, ECF No. 8; that he had procedurally defaulted his claim, id. at 8- 10; and that, although the residual clause is indeed unconstitutional, Robertson's attempted residential burglary still qualifies as an ACCA predicate because it qualifies as enumerated burglary, id. at 13-17.

         The Court denied Robertson's petition, but did not rely on the grounds the parties fought over. Rather, the Court noted that Robertson had sustained not only the three burglary convictions that the parties agreed had formed the basis of his ACCA enhancement, but also a four-count burglary conviction in 1991, evidently for breaking into cars in Kankakaee County, Illinois. Presentence Investigation Report (“PSR”) ¶ 33, CR ECF No. 25; Jul. 24, 2017 Order 5- 7. Because of this conviction, the Court found it unnecessary to decide whether Robertson's conviction for attempted residential burglary, PSR ¶ 34, could now qualify as an ACCA predicate. Jul. 24, 2017 Order 7. Reasoning that even without the attempted residential burglary, Robertson had sustained at least three ACCA-predicate offenses, and thus would have qualified for the enhancement anyway, the Court denied his petition and ordered that judgment be entered. Id. at 8. Robertson timely moved for reconsideration of the Court's order.

         He argues that the Court erred because the four-count conviction was for Illinois burglary, rather than Illinois residential burglary, and was therefore too broad to count as “generic” burglary under the enumerated clause of the ACCA. Mot. Reconsider 1-4. The government responded, ECF No. 14, agreeing with Robertson that the four-count conviction for Illinois burglary did not qualify as an ACCA predicate, but repeating its argument that Robertson's conviction for attempted residential burglary does qualify. Resp. 1-7.


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

         Under some circumstances, a party may obtain relief from a court's final judgment in a civil matter if the party so moves within a reasonable time. Fed.R.Civ.P. 60(b), (c). A party may seek relief from the judgment for a number of enumerated reasons, or for “any other reason that justifies relief.” Id. 60(b)(6). While Rule 60 is not “a substitute for direct appeal, ” it can apply under “exceptional circumstances.” Banks v. Chicago Bd. of Educ., 750 F.3d 663, 668 (7th Cir. 2014). Rule 60(b) applies with equal force to federal habeas corpus proceedings. Gonzalez v. Crosby, 545 U.S. 524, 529 (2005).

         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). By the same token, a hearing need not be held if the petitioner is entitled to the relief he seeks.

         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 and the government agree that the Court's previous ruling relied on erroneous grounds, but disagree whether judgment should be set aside, restating as justification the bases they asserted in their original motion and response. As explained below, the Court agrees with the parties that its earlier ruling rested on an incorrect analysis; furthermore, the Court agrees with Robertson's original argument that his attempted residential burglary no longer qualifies as an ACCA predicate. Because Robertson is entitled to a resentencing, and because, as he has represented in his motions for status in this case, ECF Nos. 10, 11, such a resentencing may result in a guideline range below the sentence he has already served, the Court finds that the circumstances are exceptional, and it is appropriate, pursuant to Rule 60(b)(6), to set aside the Court's earlier order denying Robertson relief, and the judgment. While Rule 60(b) is not a substitute for direct appeal, expediency and the nature of Robertson's situation authorize a speedy correction of the Court's error under the Rule. Moreover, this case does not present concerns about the use of Rule 60 motions as a substitute for direct appeal. The parties and the Court agree that the ...

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