United States District Court, C.D. Illinois, Urbana Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE
cause is before the Court on Petitioner Terence Merritt's
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (d/e 1). As
explained below, Petitioner is entitled to relief on his
claim that his conviction and 10-year sentence of
imprisonment under 18 U.S.C. § 924(c) are
unconstitutional. Accordingly, Petitioner's § 2255
motion is GRANTED.
October 5, 2006, Petitioner and a co-defendant, Francisco
Antonio Villalobos, were charged in a two-count Indictment
with kidnapping, in violation of 18 U.S.C. § 1201, and
using and carrying a firearm during a crime of violence, in
violation of 18 U.S.C. §§ 924(c) and 2. United
States v. Villalobos et al., No. 06-cr-20067
(hereinafter, Crim.), Indictment (d/e 7). The “crime of
violence” referenced in Count Two of the Indictment was
the kidnapping offense charged in Count One. Id. On
December 14, 2006, Petitioner pleaded guilty on both counts.
guilty pleas were made pursuant to a written plea agreement.
See Crim., Plea Agreement (d/e 13). In the plea
agreement, Petitioner acknowledged that Villalobos had fired
a gun during the commission of the kidnapping offense.
Id. ¶ 20. Petitioner also waived his right to
collaterally attack his sentences or convictions.
Id. ¶ 9. This waiver included any challenges to
Petitioner's sentences or convictions through a motion
brought under 28 U.S.C. § 2255. Id.
to Petitioner's sentencing hearing, the United States
Probation Office filed a Presentence Investigation Report
(PSR). Crim., PSR (d/e 21). With respect to Count One of the
Indictment, Petitioner's statutory maximum term of
imprisonment was life. Id. ¶ 66; see
also 18 U.S.C. § 1201(a) (2006). Because a firearm
was discharged during the commission of the kidnapping
offense, Petitioner was statutorily required to serve a
10-year sentence on Count Two consecutive to the sentence
imposed on Count One. Crim., PSR, ¶ 67; see
also 18 U.S.C. § 924(c)(1)(A)(iii) (2006).
March 30, 2007, Judge Michael P. McCuskey sentenced
Petitioner to 240 months' imprisonment on Count One.
See Crim., Judgment, (d/e 26), at 2. Judge McCuskey
sentenced Petitioner to 120 months' imprisonment on Count
Two, to be served consecutively to the term of imprisonment
imposed on Count One. Id. Petitioner was also
sentenced to five years of supervised release on each count,
with the terms of supervised release to be served
concurrently. Id. at 3. Petitioner did not file an
November 27, 2018, Petitioner filed his Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. Petitioner claims that his
conviction and sentence for using and carrying a firearm
during a crime of violence is unconstitutional because
kidnapping no longer qualifies as a crime of violence after
the Supreme Court's decision in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018). See Motion (d/e
1), at 4.
24, 2019, the Supreme Court announced its decision in
United States v. Davis, 139 S.Ct. 2319 (2019). The
Court held that judges must use the categorical approach to
determine if an offense is a crime of violence under 18
U.S.C. § 924(c) and that § 924(c)'s residual
clause is unconstitutionally vague. Petitioner subsequently
filed a motion to supplement his § 2255 motion with
argument based on Davis. The Court granted the
December 2, 2019, the Government filed its Response to the
Petitioner's Section 2255 Motion (d/e 8). The Government
concedes that kidnapping in violation of 18 U.S.C. §
1201 no longer qualifies as a crime of violence with respect
to 18 U.S.C. § 924(c), that Petitioner's claim that
§ 924(c)(3)(B) is unconstitutionally vague presents a
cognizable claim for relief under 28 U.S.C. § 2255, and
that Davis announced a new substantive rule that
applies retroactively to cases on collateral review. Response
(d/e 8), ¶¶ 10-12. In addition, the Government does
not raise procedural default or Petitioner's collateral
attack waiver in the plea agreement as barring
Petitioner's relief pursuant to § 2255. Id.
¶¶ 10, 14. Rather, the Government agrees that
Petitioner's conviction and sentence on Count Two of the
Indictment should be vacated and that Petitioner should be
resentenced on his kidnapping offense. Id. ¶
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).
argues that his conviction and sentence for using and
carrying a firearm during a crime of violence under 18 U.S.C.
§ 924(c) violate the Constitution because §
924(c)'s residual clause is unconstitutionally vague. The
Government's decision not to argue in its response that
Petitioner's claim is procedurally barred or barred by
Petitioner's collateral attack waiver operates as a
waiver of any argument that Petitioner is not entitled to
relief due to procedural default or the collateral attack
waiver. See Buggs v. United States, 153 F.3d 439,
444 (7th Cir. 1998) (holding that the Government had waived
the petitioner's procedural default by not arguing that
the petitioner's claim was procedurally defaulted);
United States v. Kieffer, 794 F.3d 850, 852 (7th
Cir. 2015) (holding that the Government had waived ...