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United States v. Shipman

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

November 20, 2017

United States of America, Plaintiff,
v.
Tracy D. Shipman, Defendants.

          ORDER

          Philip G. Reinhard Judge.

         For the following reasons, defendants' 28 U.S.C. § 2255 motion [1] is dismissed as untimely. The court grants a certificate of appealability. The case is closed.

         STATEMENT-OPINION

         On January 27, 2016, defendant Tracy D. Shipman filed a motion challenging his sentence under 28 U.S.C. § 2255 [1]. On February 3, 2016, the court ordered defendant to show cause why this matter should not be dismissed. [3] On February 19, 2016, the defendant filed a response [6], on February 26, 2016, the government filed a reply [7], on March 8, 2016, the government filed an additional reply [10], and on April 4, 2016, defendant filed a surreply [11]. 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) [18]. After the court ordered supplemental briefing regarding the Supreme Court's decision in Beckles, the government filed a response on June 2, 2017 [25] and defendant filed a reply on June 20, 2017 [26]. This matter is now ripe for the court's review.

         The 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.

         A. Timeliness.

         Even if 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.

         The 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).

         A 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).

         While 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. 2017):

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.

         As in 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.

         While 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 ...


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