United States District Court, N.D. Illinois, Eastern Division
RANDY D. VELLEFF, Movant,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
H. Lefkow U.S. District Judge.
D. Velleff moves to vacate his conviction and sentence
pursuant to 28 U.S.C. § 2255. (Dkt. I.) On July 10, 2003,
a jury found Velleff guilty of conspiracy to commit a robbery
affecting interstate commerce in violation of 18 U.S.C.
§ 1951 (Hobbs Act conspiracy) (count 1); conspiracy to
possess with intent to distribute in excess of five kilograms
of cocaine in violation of 21 U.S.C. § 846 (count 2);
possessing a firearm in furtherance of a crime of violence
(specifically identified as Hobbs Act conspiracy as laid out
in count 1) in violation of 18 U.S.C. § 924(c)(1)(a)
(count 3); attempted robbery affecting commerce in violation
of 18 U.S.C. § 1951 (count 4); and attempted possession
of a controlled substance with intent to distribute in
violation of 21 U.S.C. § 841(a)(1) (count 5). (Cr. dkt.
83.) Velleff was initially sentenced to 430 months in prison.
(Cr. dkt. 105.) The Seventh Circuit Court of Appeals remanded
his case following United States v. Booker, 543 U.S.
220 (2005), and his sentence was subsequently reduced to 300
months: 240 months' imprisonment on the robbery and drug
convictions and a consecutive 60 months' imprisonment on
the § 924(c) conviction. (Cr. dkt. 130.) Velleff s 300-
month sentence was affirmed on appeal. In 2010, Velleff filed
a collateral attack on his sentence pursuant to § 2255
that was denied. According to the Bureau of Prisons'
website, https://www.bop.gov/inmateloc, Velleff is scheduled
to be released from custody on March 26, 2024.
31, 2016, Velleff moved the Seventh Circuit Court of Appeals
for leave to file a second petition, seeking to use
Johnson v. United States, 576 U.S.__, 135 S.Ct.
2551, 192 L.Ed.2d 569 (2015), to challenge his designation as
a career offender under U.S.S.G. § 4B1.1. The Seventh
Circuit denied that request but granted Velleff leave to
challenge his conviction under § 924(c). (Dkt 2 at 2.)
Having considered the submissions of the parties, the court
grants the motion to vacate the conviction.
2255 allows a person held in federal custody to petition the
sentencing court for an order vacating, setting aside, or
correcting his sentence. 28 U.S.C. § 2255(a). Relief
under § 2255 is "reserved for extraordinary
situations." Hays v. United States, 397 F.3d
564, 566 (7th Cir. 2005 (quoting Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996). A petitioner
must establish "that the district court sentenced him in
violation of the Constitution or laws of the United States or
that the sentence was in excess of the maximum authorized by
law or is otherwise subject to collateral attack."
Id. at 566-67 (quoting Prewitt, 83 F.3d at
816). It is proper to deny a § 2255 motion without an
evidentiary hearing if "the motion and the files and
records of the case conclusively demonstrate that the
prisoner is entitled to no relief." 28 U.S.C. §
was sentenced to a mandatory minimum of 60 months'
imprisonment on the § 924(c)(1)(A) conviction, which
applies to a defendant who uses or carries a firearm during
the commission of any "crime of violence." A
"crime of violence" is defined as a felony that
either "has 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)
(force clause), or "that by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the [felony], " id. § 924(c)(3)(B)
(residual clause). Here, as stated in the indictment, the
specific underlying crime of violence was count 1, Hobbs Act
conspiracy. (See cr. dkt. at 7.)
Johnson \. United States, 576 U.S.__, 135 S.Ct. 2551,
192 L.Ed.2d 569 (2015), the Supreme Court found
unconstitutionally vague the residual clause in the Armed
Career Criminal Act (ACCA), 18 U.S.C. §
924(c)(2)(b)(ii). Velleff argues that his five-year sentence
under § 924(c) cannot be sustained because
Johnson renders that statute's similar residual
clause unconstitutionally vague. The government disputes this
assertion and further argues that Velleff s Johnson
claim is untimely and has been procedurally defaulted for
failure to raise it on direct appeal as well as that Hobbs
Act conspiracy is a crime of violence under 924(c)'s
Section 924(c)'s Residual Clause Is
the government's opposition is dedicated to the argument
that § 924(c)'s residual clause is not
unconstitutional post-Johnson. Addressing that issue
first allows the court to more easily explain why Velleff s
petition is neither time barred nor procedurally defaulted.
In Johnson, the Supreme Court held that ACCA's
residual clause, 18 U.S.C. § 924(e)(2), is
unconstitutionally vague. Johnson, 135 S.Ct. at
2557. Applying the new constitutional rule announced in
Johnson, the Seventh Circuit has held §
924(c)(3)(B) to be unconstitutionally vague. United
States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016);
United States v. Jackson, 865 F.3d 946, 952 (7th
Cir. 2017). While the government argues strenuously against
that holding, the court must follow Seventh Circuit
precedent, which unequivocally states that §
924(c)'s residual clause is unconstitutionally vague.
Velleff s Motion Is Not Untimely
the statute of limitations for filing a successive motion is
one year from the date the petitioner's conviction
becomes final. 28 U.S.C. § 2255(f)(1). A motion,
however, may also be filed within one year after a right is
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review. 28 U.S.C. §
2255(f)(3). Johnson was decided on June 26, 2105.
The government argues that Velleff did not file his petition
with the court until January 20, 2017, more than one year
after Johnson, and therefore he has not complied
with § 2255(f)(3). The court acknowledges that certain
docket entries could be seen as supportive of this
interpretation. But Velleff sought leave to file a successive
§ 2255 petition on May 31, 2016, and the Seventh
Circuit, in granting that request, specifically stated
"The clerk of court will transfer the papers to district
court for filing as a § 2255 action." (Dkt. 2 at
3.) Therefore, Velleff s motion was filed June 17,
2016. (See dkt. 1.) Because that date
is within one year of the decision in Johnson,
Velleff s motion is not untimely.
Velleff s Motion Is Not Procedurally Defaulted
government argues that Velleff has procedurally defaulted his
claim by not raising it on appeal. Generally, a defendant is
barred from raising an argument on collateral review that was
not raised on direct appeal. See Sanchez-Llamas v.
Oregon,548 U.S. 331, 350-51, 126 S.Ct. 2669, 2682, 165
L.Ed.2d 557 (2006). The court may, however, excuse procedural
default if the defendant can demonstrate either "(1)
both good cause failure to raise the claims on direct appeal
and actual prejudice from the failure to raise those claims;
or (ii) that the district court's refusal to ...