United States District Court, C.D. Illinois, Springfield Division
ORDER AND OPINION
MYERSCOUGH, UNITED STATES DISTRICT JUDGE.
February 21, 2018, at a bond revocation hearing before
Magistrate Judge Tom Schanzle-Haskins, Defendant Myron
Zollicoffer was ordered released on bond, but the
Defendant's release was stayed pending the
Government's appeal to this Court. See February
21, 2018 Minute Entry. The Government filed a Motion for
Revocation of Release Order (d/e 68). As the Court ruled at
the revocation hearing on February 23, 2018, the Court GRANTS
the Government's Motion, REVERSES Magistrate Judge
Schanzle-Haskins' Order, and REVOKES Defendant's
29, 2003, Defendant was sentenced to 230 months of
imprisonment following his guilty pleas to three counts of
distributing a substance containing crack cocaine in
violation of 21 U.S.C. § 841(a)(1). See
Judgment (d/e 27). The Defendant was ordered released on bond
on January 9, 2017, pending the resolution of his Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255, Case Number 15-3337, pending before this Court.
The Court issued bond pursuant to this Court's inherent
power in section 2255 proceedings to admit applicants to bail
pending the decision of their case, as the Seventh Circuit
recognized in Cherek v. United States, 767 F.2d 335,
337 (7th Cir. 1985).
August 12, 2017, Defendant allegedly committed a domestic
violence offense in violation of his conditions of release.
Defendant has been charged in Macon County Circuit Court with
committing six felonies in case number 2018-CF-000189: (1)
unlawful vehicle invasion; (2) aggravated domestic battery;
(3) aggravated battery/great bodily harm; (4) aggravated
battery/ great bodily harm; and two felonies related to
committing domestic battery with a prior record. On February
21, 2018, the Macon County Circuit Court held a preliminary
hearing and found probable cause existed that the Defendant
committed these felonies.
February 21, 2018, at a bond revocation hearing before
Magistrate Judge Tom Schanzle-Haskins, Defendant was ordered
released on bond after the court considered the parties'
arguments. Magistrate Judge Schanzle-Haskins found that there
were conditions of release which could assure the safety of
any other person and the community. See February 21,
2018 Minute Entry; Proposed Amended Order Setting Conditions
of Release (d/e 67). However, Magistrate Judge
Schanzle-Haskins temporarily stayed the order of release to
allow time for the Government to appeal. Id. The
Government promptly filed a Motion for Revocation of Release
Order (d/e 68).
Court previously issued bond pursuant to this Court's
inherent power in section 2255 proceedings to admit
applicants to bail pending the decision of their case, as the
Seventh Circuit recognized in Cherek v. United
States, 767 F.2d 335, 337 (7th Cir. 1985).
While the standard for granting bail in such cases has not
yet been determined by the Seventh Circuit, a case from the
Urbana Division of this District has held that bail should be
granted pending post-conviction habeas corpus review only
“when the petitioner has raised substantial
constitutional claims upon which he has a high probability of
success” and “extraordinary or exceptional
circumstances exist which make the grant of bail necessary to
make the habeas remedy effective.” Douglas v.
United States, No. 06-CV-2113, 2006 WL 3627071, at *1
(C.D. Ill.Dec. 11, 2006) (citing Landano v.
Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992)).
circumstances that previously convinced this Court to release
Mr. Zollicoffer on bond have changed substantially since
January 2017. The Court previously released Mr. Zollicoffer
on bond due to the high likelihood of success on his §
2255 motion, which was based on the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). Johnson held that a residual clause of the
Armed Career Criminal Act (ACCA), which classified an offense
as a “crime of violence” if it involved
“conduct that presents a serious potential risk of
physical injury to another, ” was unconstitutionally
vague. 135 S.Ct. 2551, 2554, 2562-63 (2015). Mr. Zollicoffer
was sentenced under the mandatory federal sentencing
guidelines under an identical residual clause and, in January
2017, it appeared likely that the Supreme Court would hold
that Johnson was both retroactive and applied to the
identically worded residual clause in the federal sentencing
guidelines. However, in Beckles v. United States,
137 S.Ct. 886 (2017), the Supreme Court held that the
“advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause” and that the
residual clause in § 4B1.2(a)(2) is not void for
vagueness. 137 S.Ct. 886, 890 (2017). While Mr.
Zollicoffer's claim is not foreclosed since he was
sentenced under the guidelines when they were mandatory, his
chances of success are significantly lower.
Court's January 2017 decision to release Mr. Zollicoffer
was also based on its opinion that Mr. Zollicoffer was a good
candidate for bond. Mr. Zollicoffer had a record of good
behavior in prison, including obtaining his GED and enrolling
in the Bureau of Prisons' Residential Drug Abuse Program.
However, Mr. Zollicoffer's alleged criminal activity
weighs against the Court's previous finding that he would
be a good candidate for bond.
on these changed circumstances, the Court chooses to revoke
its exercise of its inherent authority to release the
Defendant on bond pending the resolution of his § 2255
motion. The Government's Motion for Revocation of Release
Order (d/e 68) is GRANTED, Magistrate Judge
Schanzle-Haskins' Proposed Amended Order is REVERSED, and
Defendant's supervised release is REVOKED. Defendant is
ordered detained pursuant ...