United States District Court, C.D. Illinois, Urbana Division
MYERSCOUGH, UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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).
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.
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).
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.
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).
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.
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.
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).
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.
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.
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.
Waagner's Claim that his Ohio Aggravated Burglaries are
Not Violent Felonies Relies on Johnson and Can
Proceed in a Successive § 2255 Motion.
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.
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
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.
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.
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
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 §
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
The Government is Not Estopped from Arguing Ohio Aggravated