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Waagner v. United States

United States District Court, C.D. Illinois, Urbana Division

September 12, 2019

CLAYTON LEE WAAGNER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

         This cause is before the Court on Petitioner Clayton Lee Waagner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 1). 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). Because Petitioner is not entitled to relief, the § 2255 Motion is DENIED. However, the Court will issue a certificate of appealability.

         I. BACKGROUND

         After a jury trial in December 2000, Waagner was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and possessing a stolen vehicle which had crossed a state line in violation of 18 U.S.C. § 2313(a). See United States v. Waagner, Central District of Illinois, Urbana Division, No. 99-cr-20042-HAB (hereinafter, Crim.), Verdict (d/e 77), PSR ¶3 (d/e 101).

         The United States Probation Office prepared a Presentence Investigation Report (“PSR”). The PSR found that Waagner qualified as an Armed Career Criminal under 18 U.S.C. § 924(e) because he had at least three prior convictions for crimes of violence, including two 1978 convictions for Ohio Aggravated Burglary, Case #CR-41373 and Case #CR-40374, and a 1992 conviction for Ohio Attempted Robbery, Case #91-CR-006898. PSR ¶¶41, 48-49, 51. Additionally, the PSR revealed that Waagner had a 1975 conviction for Virginia Statutory Burglary, and a 1978 conviction for Georgia Burglary. PSR ¶¶45, 50.

         Due to the Armed Career Criminal Act (“ACCA”) enhancement, the PSR concluded that under the then-mandatory sentencing guidelines Waagner's offense level was 34 and his criminal history category was VI, resulting in a guideline imprisonment range of 262 to 327 months of imprisonment. PSR ¶104. Waagner's status as an Armed Career Criminal under § 924(e) increased his statutory imprisonment range from zero to ten years imprisonment to fifteen years to life imprisonment on Count 1.

         On January 28, 2002, District Judge Harold Baker imposed a sentence of 327 months' imprisonment, followed by 5 years of supervised release. Waagner also pled guilty to escape in a separate case in the Central District of Illinois after he escaped from custody after his trial. See United States v. Waagner, Central District of Illinois, Urbana Division, No. 01-CR-20023-HAB. Waagner received a consecutive sentence of 37 months of imprisonment for the escape, resulting in a combined imprisonment sentence of 364 months. Waagner's convictions and combined sentence of 364 months were affirmed by the Seventh Circuit. United States v. Waagner, 319 F.3d 962 (7th Cir. 2003).

         In addition to Waagner's convictions and sentences in the Central District of Illinois, Waagner is serving sentences pursuant to criminal judgments in three other federal district courts. In 2006, in the Middle District of Pennsylvania, Nos. 1:CR-01-191, 1:CR-06-145, 1:CR-06-147, 1:CR-06-203, and 1:CR-06-228, Waagner pled guilty to a litany of charges that had been pending in other courts and transferred to the Middle District of Pennsylvania where he had been indicted for bank robbery. He was initially sentenced to 400 months' imprisonment, to run concurrently with his sentence in this district. However, in 2016, his sentence was reduced to 250 months' imprisonment after Waagner filed an unopposed motion pursuant to 28 U.S.C. § 2255 in light of Johnson v. United States, 135 S.Ct. 2551 (2015). See United States v. Waagner, No. 1:01-cr-191 (M.D. Pa.), d/e 28, 31, 43. In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act is unconstitutionally vague. 135 S.Ct. at 2563. Waagner also has a sentence of 228 months' imprisonment imposed by the Eastern District of Pennsylvania, No. 1:02-cr-00582, which was ordered to be served concurrently with his sentence here.

         Finally, Waagner has a sentence of 235 months' imprisonment imposed by the Southern District of Ohio, No. 1:02-cr-00007, which was ordered to be served consecutively with his sentence here. Waagner also filed a § 2255 Motion in his Southern District of Ohio case in light of Johnson. However, this motion was denied on April 11, 2017. United States v. Waagner, No. 1:02-CR-007, 2017 WL 1324608 (S.D. Ohio Apr. 11, 2017).

         In 2013, Waagner filed an initial Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 for his criminal case at issue here. Among other claims, he challenged his status as an armed career criminal in light of Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276 (2013). Judge Baker denied the motion, and the Seventh Circuit dismissed Waagner's appeal for failure to pay the required docketing fee. Waagner v. United States, No. 13-cv-2277 (C.D. Ill.), d/e 10, 19.

         On June 6, 2016, after obtaining authorization from the Seventh Circuit to file a successive § 2255 motion, Waagner filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). As in his other cases, Waagner seeks to challenge his sentence in light of Johnson v. United States, 135 S.Ct. 2551 (2015). The Court appointed the Federal Public Defender as counsel for Waagner. The Federal Public Defender filed a Memorandum of Law on August 18, 2016, (Doc. 5).

         The Court Ordered the Government to respond, which it did on October 17, 2016 (Doc. 6). Waagner filed a reply on November 21, 2016 (Doc. 7). On April 27, 2017, Waagner filed a Motion to Cite Authority (Doc. 8), citing the Fourth Circuit's decision in Castendet-Lewis v. Sessions, 855 F.3d 253 (4th Cir. 2017), which held that Virginia statutory burglary under Va. Code § 18.2-91 is broader than generic burglary and is not divisible.

         The Court also ordered supplemental briefing after the Supreme Court's decisions in United States v. Stitt, 139 S.Ct. 399 (2018), and Quarles v. United States, 139 S.Ct. 1872 (2019), which both addressed the scope of generic burglary. Waagner filed his supplemental brief on August 5, 2019 (Doc. 10). The Government has not filed a timely response. Additionally, the Court notes that Waagner's wife and children have submitted numerous letters in support (Docs. 11, 12, and 13). This Order follows.

         II. ANALYSIS

         A 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). Post-conviction relief under § 2255 is “appropriate for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal quotation marks omitted).

         Here, Waagner argues his ACCA sentence enhancement, pursuant to 18 U.S.C. § 924(e), is invalid in light of the Supreme Court's opinion in Johnson v. United States, 135 S.Ct. 2551 (2015), because he no longer has three predicate convictions for violent felonies. A person who violates 18 U.S.C. § 922(g) is an Armed Career Criminal if they have “three previous convictions . . . for a violent felony or serious drug offense.” 18 U.S.C. § 924(e). Section 924(e)(2)(B) defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). Clause (i) is known as the “elements clause.” The first part of clause (ii) is known as the “enumerated offenses clause, ” and the part of clause (ii) that follows “otherwise” is known as the “residual clause.” In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held that the residual clause is unconstitutionally vague. 135 S.Ct. at 2563.

         Waagner argues that his prior Ohio Aggravated Burglary convictions only qualified as violent felonies under the residual clause, so they can no longer be used as predicate offenses. Further, Waagner argues that his prior convictions for Ohio Attempted Robbery, Virginia Statutory Burglary, and Georgia Burglary are not violent felonies either. Accordingly, he argues he should not have been designated an Armed Career Criminal and subject to a mandatory minimum sentence of 15 years' imprisonment, but, instead, the otherwise applicable statutory range of zero to ten years' imprisonment.

         In response, the Government argues that Waagner's claim is actually based on Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016), rather than Johnson. And, accordingly, the Government argues that Waagner is not entitled to relief because his claim does not raise a new rule of constitutional law as required by § 2255(h)(2), is procedurally defaulted, and is untimely. Additionally, the Government argues that Waagner's claim does not have merit because all of Waagner's five prior convictions remain violent felonies. The Court finds that Waagner's claim does rely on Johnson, but the Court agrees with the Government that Waagner still has at least three predicate convictions and remains an Armed Career Criminal. Accordingly, Waagner's Motion must be denied.

         A. Waagner's Claim that his Ohio Aggravated Burglaries are Not Violent Felonies Relies on Johnson and Can Proceed in a Successive § 2255 Motion.

         The Government first argues that Waagner's claim is actually based on Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016), rather than Johnson. This is so, the Government argues, because Waagner's prior offenses qualified as violent felonies under the elements or enumerated clause at the time of sentencing, which Johnson did not impact. And, his claims that his prior convictions no longer fall under the elements or enumerated clause relies on Mathis and Descamps, not Johnson. Accordingly, the Government argues that Waagner is not entitled to relief because his claim fails to raise a new rule of constitutional law as required by § 2255(h)(2), is procedurally defaulted, and is untimely.

         However, the Seventh Circuit's decision in Cross v. United States, 892 F.3d 288 (7th Cir. 2018), rejected a nearly identical argument. The petitioners in Cross had been sentenced as career offenders under the mandatory sentencing guidelines. Id. at 291. In light of Johnson, the petitioners brought § 2255 motions and argued that the residual clause in the career offender guideline was unconstitutionally vague. Id. The Government argued that one of the petitioners' claims was actually based on an earlier case-Curtis Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265 (2010). At the time of sentencing, the petitioner's conviction of simple robbery qualified under the elements clause, while after Curtis Johnson, his offense only qualified under the residual clause. Cross, 892 F.3d at 297. The Government argued that Curtis Johnson, rather than Johnson, triggered the limitations period under § 2255(f)(3), and the petitioner's claim was now untimely. Id.

         The Seventh Circuit, however, found that “[p]rior to Johnson, [the petitioner] had no basis to assert that his sentence was illegal and thus he could not claim a right to be released. Curtis Johnson did not change that fact: all it did was to eliminate the elements clause as a basis for [petitioner's] status, which became entirely dependent on the residual clause. There matters stayed until Johnson. Only then could [the petitioner] file a nonfrivolous motion for relief.” Id.

         The Seventh Circuit also distinguished its earlier holding in Stanley v. United States, 827 F.3d 562, 565 (7th Cir. 2016), “which held that Curtis Johnson rather than Johnson triggered the limitation period under 2255(f)(3).” Cross, 892 F.3d at 298. The Seventh Circuit explained that, unlike in Cross, Johnson was irrelevant to the predicate offense at issue in Stanley because that offense had only ever been a predicate offense under the elements clause. Id.

         The same reasoning is true here. Prior to Johnson, any argument based on Descamps that Waagner's Ohio Aggravated Burglary offenses were not violent felonies was frivolous. Even if Descamps had made his convictions no longer qualify as violent felonies under the enumerated clause, they remained violent felonies under the residual clause. Indeed, Waagner brought a § 2255 motion based on Descamps, and it was denied for this very reason. See Waagner v. United States, No. 13-cv-2277 (C.D. Ill.), Order, d/e 10. It was not until Johnson that Waagner could “file a nonfrivolous motion for relief.” Of course, as explained below, the Court now finds his Ohio Aggravated Burglary offenses are still violent felonies under the enumerated clause. However, his argument that he is not an Armed Career Criminal after Johnson is far from frivolous, like it was before Johnson. And, before Johnson, the state of law indicated that Waagner's Ohio Aggravated Burglary convictions could be deemed violent felonies only under the residual clause. The Court finds that the determination of whether Waagner's prior offenses are violent felonies was necessarily impacted by Johnson and that Waagner's claim, therefore, relies on Johnson.

         Because Waagner's claim relies on Johnson, the Court finds that Waagner's claim is timely and can be raised on a successive § 2255 Motion. Pursuant to § 2255(f)(3), a claim is timely if it is brought 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). The Supreme Court held that its holding in Johnson applied retroactively to cases on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1268 (2016) (“Johnson announced a substantive rule that has retroactive effect in cases on collateral review”). Therefore, Waagner, who brought his claim within one year of the Johnson decision, can attack the validity of his sentence in a § 2255 motion under Johnson. Id. Further, because Johnson is a new constitutional rule that has been made retroactive to cases on collateral review by the Supreme Court, Johnson meets the requirements for successive petitions under § 2255(h)(2).

         Finally, the Court finds that Waagner's procedural default is excused. If a defendant fails to raise a claim on direct review, he must show both cause and prejudice in order to raise the claim in post-conviction relief. See Bousley v. United States, 523 U.S. 614, 622 (1998). Waagner has established cause for failing to object at trial. “[A] claim that ‘is so novel that its legal basis is not reasonably available to counsel” may constitute cause for a procedural default.'” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611 (1998) (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910 (1984). At the time of Waagner's trial, direct appeal, and initial § 2255 motion, “no one-the government, the judge, or the [defendant]-could reasonably have anticipated Johnson.” Cross v. United States, 892 F.3d 288, 295 (7th Cir. 2018) (quoting United States v. Synder, 871 F.3d 1122, 1127 (10th Cir. 2017)). Additionally, if Waagner's claim had merit, he would have established prejudice due to his enhanced prison sentence. Accordingly, the Court will not dismiss his claim for procedural default. However, the Court still finds that Waagner is not entitled to relief on the merits as described below.

         B. The Government is Not Estopped from Arguing Ohio Aggravated ...


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