United States District Court, C.D. Illinois, Urbana Division
HENRY L. JOHNSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER AND OPINION
E. Shadid United States District Judge.
before the Court is Petitioner Henry L. Johnson's Motion
to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.
§ 2255 (Doc. 1). Petitioner has also filed a Motion to
Amend (Doc. 10). For the reasons set forth below,
Petitioner's § 2255 Motion (Doc. 1) is DENIED and
the Court DECLINES to issue a Certificate of Appealability.
Petitioner's Motion to Amend (Doc. 10) is DENIED as
futile. A hearing on the Motion is not required because
“the motion, files, and records of the case
conclusively show that the prisoner is entitled to no
relief.” Hutchings v. United States, 618 F.3d
693, 699-700 (7th Cir. 2010) (quotation omitted).
November 2015, Johnson was charged in a one count Indictment
with Possession of a Firearm by a Felon in violation of 18
U.S.C. §§ 922(g) and 924(e). (R. 1). In April 2016,
Johnson pleaded guilty to the Indictment pursuant to a Rule
11(c)(1)(C) plea agreement. (R. April 28, 2016 Minute Entry);
Plea Agreement (R.15).
United States Probation Office prepared an initial
presentence investigation report, which detailed
Johnson's extensive criminal background. PSR (R.23);
see also, Resp. at 2-3 (Doc. 7). The initial PSR
concluded that Johnson qualified as an Armed Career Criminal
pursuant to 18 U.S.C. § 924(e) because he had three
previous convictions for a “violent felony.” PSR
at ¶ 21 (R.23). Specifically, the PSR found his prior
Illinois convictions for aggravated battery of a peace
officer, aggravated battery with a firearm, and armed robbery
were violent felonies as defined under 18 U.S.C. §
924(e)(2)(B). Id. Petitioner objected and argued
that his conviction for aggravated battery of a peace office
was not a “violent felony, ” and that his armed
robbery conviction was only for an attempt, and, thus, also
not a “violent felony.” (R.31). District Judge
Colin Bruce rejected these arguments and found that Johnson
qualified as an Armed Career Criminal. Order (R.33).
Accordingly, Johnson was subject to a minimum term of 15
years' imprisonment and a maximum term of life
imprisonment. See 18 U.S.C. § 924(e).
February 6, 2017, Judge Bruce sentenced Johnson to the
mandatory minimum sentence of 180 months' imprisonment,
followed by a five-year term of supervised release. (R. Feb.
6, 2017 Minute Entry). The written judgment was entered on
February 7, 2017. (R. 36). Johnson timely filed a notice of
appeal. (R.39). However, his appointed counsel moved to
withdraw because the appeal was frivolous. The Seventh
Circuit dismissed the appeal on February 14, 2018. (R.54).
August 15, 2018, Johnson filed this timely Motion to Vacate,
Set Aside or Correct Sentence pursuant to 28 U.S.C. §
2255 (Doc. 1). Johnson argues that his conviction for
Illinois armed robbery is not a violent felony, and,
accordingly, he does not qualify as an Armed Career Criminal.
The Government filed its Response (Doc. 7). Johnson filed a
timely Reply (Doc. 10) on November 1, 2018, which included a
Motion to Amend his § 2255 Motion to include a claim of
ineffective assistance of counsel. Specifically, Johnson
argues his trial counsel was ineffective for failing to
challenge the use of his armed robbery conviction as a
predicate offense for the Armed Career Criminal enhancement
and his appellate counsel was ineffective for failing to
raise the issue on appeal. This Order follows.
person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. Relief under § 2555 is an extraordinary remedy
because a § 2255 petitioner has already had “an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007). A petitioner
may avail himself of § 2255 relief only if he can show
that there are “flaws in the conviction or sentence
which are jurisdictional in nature, constitutional in
magnitude or result in a complete miscarriage of
justice.” Boyer v. United States, 55 F.2d 296,
298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268
(1995). Section 2255 is limited to correcting errors that
“vitiate the sentencing court's jurisdiction or are
otherwise of constitutional magnitude.”
Guinan v. United States, 6 F.3d 468, 470 (7th Cir.
1993) (citing Scott v. United States, 997 F.2d 340
(7th Cir. 1993)). Johnson is not entitled to relief under
§ 2555 because his claim is both procedurally defaulted
Johnson's Claim is Procedurally Defaulted.
did not raise his claim that his Illinois armed robbery
conviction was not a violent felony in the trial court or on
direct appeal and it is now procedurally defaulted. See
McCoy v. United States, 815 F.3d 292, 295 (7th Cir.
2016) (“A claim cannot be raised for the first time in
a § 2255 motion if it could have been raised at trial or
on direct appeal.”) (citing Sandoval v. United
States, 574 F.3d 847, 850 (7th Cir. 2009)). A petitioner
bringing a § 2255 motion is barred from raising: (1)
issues raised on direct appeal, absent some showing of new
evidence or changed circumstances; (2) non-constitutional
issues that could have been but were not raised on direct
appeal; or (3) constitutional issues that were not raised on
direct appeal, absent a showing of cause for the default and
actual prejudice from the failure to appeal. Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992),
overruled on other grounds by Castellanos v. United
States, 26 F.3d 717, 710-20 (7th Cir. 1994). Johnson
conceded during sentencing that his 1994 conviction for armed
robbery constituted a violent felony and he did not raise
this argument on appeal. (R.54). Johnson has not alleged any
cause or prejudice for not raising this claim on direct
appeal. Moreover, non-constitutional claims, such as
Johnson's, that are not raised on direct appeal are
defaulted without taking into account cause and prejudice.
Belford, 975 F.2d at 313. Accordingly, the Court
finds Johnson's claim is procedurally defaulted and must
Johnson's Claim Fails on the Merits.
not procedurally defaulted, Johnson's claim that Illinois
armed robbery is not categorically a violent felony is
foreclosed by the Seventh Circuit's decision in
Klikno v. United States, No. 16-2312, 2019 WL
2559266, at *1 (7th Cir. June 21, 2019). In
Klikno, the Seventh Circuit reexamined Illinois
robbery and armed robbery offenses in light of the Supreme
Court's decision in Stokeling v. United States,
139 S.Ct. 544, 202 L.E2d 512 (2019). Stokeling held
that robbery offenses fall within the ACCA's elements
clause if they “require the criminal to overcome the
victim's resistance.” 139 S.Ct. at 550. This
requirement does “not require any particular degree of
likelihood or probability that the force used will cause
physical pain or injury; only potentiality.”
Id. at 554. Accordingly, the Stokeling
“requirement to show ‘force sufficient to
overcome a victim's resistance,' . . . is not a
demanding one.” Klikno, 2019 WL 2559266, at *6
(internal citations omitted). The Seventh Circuit found that
Illinois court cases addressing robbery offenses
“require that force be used as part of the action of
taking or immediately leaving the scene. This can reasonably
be characterized as force necessary to overcome the
victim's resistance, and thus it is compatible with
Stokeling's definition of force.”
Id. at 5. As the Illinois offense of robbery is
encompassed within the offense of armed robbery, the Seventh
Circuit held that both Illinois robbery and armed robbery
were categorically violent felonies under the ACCA.
Id. Johnson's arguments to the contrary are
foreclosed by this decision, and, thus, his claim must be
seeks to avoid this result by relying on the Eighth Circuit
decision in United States v. Bankhead, 746 F.3d 323,
325 (8th Cir. 2014). In Bankhead, the Eighth Circuit
found petitioner's juvenile delinquency offense of
Illinois armed robbery did not qualified as a violent felony.
Id. at 325. For a juvenile delinquency to qualify,
it must meet the additional requirement that the offense
entail “the use or carrying of a firearm, knife, or
destructive device.” 18 U.S.C. § 924(e)(2)(B).
There is no such requirement for use of an adult conviction,
so Bankhead has no application to whether an adult
conviction for armed robbery, like Johnson's, meets the
ACCA's definition of “violent felony.”