United States District Court, N.D. Illinois, Western Division
G. Reinhard Judge.
following reasons, defendants' 28 U.S.C. § 2255
motion  is dismissed as untimely. The court grants a
certificate of appealability. The case is closed.
January 27, 2016, defendant Tracy D. Shipman filed a motion
challenging his sentence under 28 U.S.C. § 2255 . On
February 3, 2016, the court ordered defendant to show cause
why this matter should not be dismissed.  On February 19,
2016, the defendant filed a response , on February 26,
2016, the government filed a reply , on March 8, 2016, the
government filed an additional reply , and on April 4,
2016, defendant filed a surreply . On April 6, 2016, the
court stayed these matters and lifted the stay on March 10,
2017, following the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886 (2017) .
After the court ordered supplemental briefing regarding the
Supreme Court's decision in Beckles, the
government filed a response on June 2, 2017  and
defendant filed a reply on June 20, 2017 . This matter is
now ripe for the court's review.
government has challenged defendant's § 2255 motion
on the grounds that: (1) defendant's § 2255 motion
is untimely; (2) defendant's § 2255 motion has been
procedurally defaulted; and (3) defendant's § 2255
motion fails on the merits. Because the court agrees with the
government that defendant's motion is untimely, the court
need not address the remaining issues.
defendant's sentence did rely on the residual clause of
the career offender Guidelines, the government nonetheless
argues that defendant's motion is time-barred under 28
U.S.C. § 2255(f). The parties agree that the motion is
not timely under § 2255(f)(1), because defendant's
sentence became final over one year ago, but defendant argues
that it is timely under § 2255(f)(3), which holds that a
motion is timely if it is filed within one year of “the
date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review.” 28 U.S.C. § 2255(f)(3).
Defendant contends that the right he asserts was newly
recognized by the Supreme Court in Johnson, decided
within one year of defendant's motion.
parties agree that Johnson “newly
recognized” a “right” that applies to
defendants whose sentences were enhanced through ACCA,
specifically the residual clause of the definition of
“violent felony” in 18 U.S.C. §
924(e)(2)(B)(ii). This was made clear by the Supreme Court
when it made Johnson retroactive in Welch v.
United States, 136 S.Ct. 1257 (2016). The Court in
Welch noted that “a case announces a new rule
if the result was not dictated by precedent existing at the
time the defendant's conviction became final” and
found that “It is undisputed that Johnson
announced a new rule.” See Welch v. United
States, 136 S.Ct. 1257, 1264 (2016). The court also
found that “by striking down the residual clause as
void for vagueness, Johnson changed the substantive
reach of the Armed Career Criminal Act, altering the range of
conduct or the class of persons that the Act punishes.”
Id. at 1265 (internal quotations and alterations
omitted). The issue presented in this case is whether the
right newly recognized in Johnson extends beyond
ACCA and should be construed broadly enough to apply to
defendants whose sentences were enhanced through the
pre-Booker mandatory guidelines, specifically the
residual clause of the definition of “crime of
violence” in U.S.S.G. § 4B1.2(a)(2).
plausible reading after Johnson was that it applied
broadly to all defendants sentenced under residual clauses
with the same language as ACCA. In Beckles, however,
the Supreme Court held that Johnson did not apply to
the residual clause of the post-Booker advisory
Guidelines, despite the fact that the language of the
residual clause in U.S.S.G. § 4B1.2(a)(2) was identical
to the language of the residual clause in 18 U.S.C. §
924(e)(2)(B)(ii). The Court in Beckles stressed that
the void-for-vagueness doctrine applies to laws that fix the
permissible sentences for criminal offenses, and thus does
not apply to the advisory Guidelines, which do not fix the
permissible range of sentences. The Court's opinion did
not mention the pre-Booker mandatory guidelines, and
Justice Sotomayor in her concurrence noted that
Johnson's application to the pre-Booker
guidelines remained an open question. See Beckles v.
United States, 137 S.Ct. 886, 903 n.4 (2017) (“The
Court's adherence to the formalistic distinction between
mandatory and advisory rules at least leaves open the
question whether defendants sentenced to terms of
imprisonment before our decision in [Booker] -that
is, during the period in which the Guidelines did “fix
the permissible range of sentences, ”-may mount
vagueness attacks on their sentences. That question is not
presented by this case and I, like the majority, take no
position on its appropriate resolution.”) (Sotomayor,
J., concurring in the judgment).
Beckles narrowed the area of plausible dispute, the
parties continue to disagree as to how broadly this court
should read Johnson. The question ultimately faced
by this court is over the correct interpretation of
“right” in § 2255(f)(3), and the
parties' dispute over that question is substantially
similar to the one so clearly articulated by the court in
Mitchell v. United States, 2017 WL 2275092 (W.D. Va.
The parties dispute the meaning of “right” under
§ 2255(f)(3) and its application to Johnson II.
[The defendant] posits a broader definition of
“right” more analogous to the reasoning of a
case, such that the right newly announced in Johnson
II was that no individual could face a fixed criminal
sentence on the basis of vague language identical to that in
the residual clause of the ACCA. Under this view, [the
defendant] is merely seeking an application of that right to
his own circumstances. The Government argues that a
“right” more resembles the holding of a case, and
thus that Johnson II affords relief under §
2255(f)(3) only to those individuals who were sentenced under
the residual clause of the ACCA itself. According to this
logic, [the defendant] is asking for the recognition of a new
right by this court-that individuals have a Constitutional
right not to be sentenced as career offenders under the
residual clause of the mandatory Sentencing Guidelines.
Id. at *3.
Mitchell, defendant here argues that the court
should construe Johnson's newly recognized right
as applying to defendants sentenced under a residual clause
that contains the vague language struck down in
Johnson and that fixes the permissible range of
sentences, putting it within the scope of the vagueness
doctrine. Defendant argues that the pre-Booker
guidelines meet these requirements. The government argues
that Johnson's newly recognized
“right” should be construed narrowly for purposes
of § 2255(f)(3), as applying only to ACCA defendants.
Seventh Circuit has not addressed the issue, the only two
Courts of Appeals that have squarely done so have found that
pre-Booker guideline vagueness challenges are not
timely under ...