United States District Court, C.D. Illinois, Urbana Division
FRANCISCO A. VILLALOBOS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MYERSCOUGH, U.S. DISTRICT JUDGE.
cause is before the Court on Petitioner Francisco A.
Villalobos' Motion to Vacate, Set Aside, or Correct
Sentence Under 28 U.S.C. § 2255 (Doc. 1). Petitioner is
entitled to relief on his claim that his conviction and
sentence under 18 U.S.C. § 924(c) are unconstitutional
in light of the Supreme Court's decision in United
States v. Davis, 139 S.Ct. 2319 (2019), and the Seventh
Circuit's decision in United States v. Jenkins,
849 F.3d 390, 394 (7th Cir.), reh'g denied (Apr.
20, 2017), cert. denied, 137 S.Ct. 2280 (2017), and
cert. granted, judgment vacated on other grounds,
138 S.Ct. 1980 (2018). Accordingly, Petitioner's §
2255 Motion (Doc. 1) is GRANTED.
October 2006, a grand jury in the District Court for the
Central District of Illinois charged Villalobos and a
co-defendant, Terence Merritt, with kidnapping in violation
of 18 U.S.C. § 1201 (Count One), and using and carrying
a firearm during a crime of violence in violation of 18
U.S.C. § 924(c) (Count Two). United States v.
Villalobos, Central District of Illinois, Urbana
Division, No. 06-cr-20067-1 (hereinafter Crim.), Indictment
(d/e 7). Villalobos pled guilty to both counts in December
2006, without a plea agreement. At the sentencing hearing on
May 2, 2007, Judge Michael P. McCuskey sentenced Villalobos
to 382 months' imprisonment, consisting of 262
months' imprisonment on Count One, and 120 months'
imprisonment on Count Two to be served consecutively. Crim.,
Judgment (d/e 24).
appealed the judgment, but he later voluntarily dismissed his
appeal. United States v. Villalobos, No. 07-2045
(7th Cir. May 22, 2007). Villalobos has not filed an initial
Motion to Set Aside, Vacate, or Correct Sentence under 28
U.S.C. § 2255.
nine months after his final judgment was entered, Villalobos
sought an order from the district court to order his attorney
to provide him the entire case file so that he could
determine whether to file a motion under § 2255. Crim.,
Motion (d/e 32). The district court ordered his former
defense counsel and the Government to respond, but ultimately
denied the motion, finding that Villalobos had not presented
sufficient reasons to justify disclosure of the full file.
Crim., Order (d/e 36). Two months later Villalobos filed a
motion to reconsider, which the district court also denied.
Crim., Motion (d/e 38). Villalobos appealed the denial of the
motion to reconsider, but the Seventh Circuit affirmed.
United States v. Villalobos, 316 Fed.Appx. 516, 517
(7th Cir. 2009). Villalobos also filed a Motion seeking an
order from the court to equitably toll the time to file a
Motion under § 2255. Crim., Motion (d/e 42). The
district court denied this motion, finding that it did not
have the authority to grant the relief requested. United
States v. Villalobos, No. 06-CR-20067, 2008 WL 3992690
(C.D. Ill. Aug. 20, 2008).
filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 on June 4, 2018, in the Eastern District
of California, where he is incarcerated. See Villalobos
v. Salazar, No. 18-cv-2204 (C.D. Ill.). He argued that
his conviction under § 924(c) is invalid because his
underlying crime of violence-federal kidnapping-was only a
crime of violence under the residual clause of §
924(c)(3)(B), which is unconstitutionally vague. The Eastern
District of California, however, transferred the Petition
here to the Central District of Illinois on August 3, 2018.
Id., d/e 5. Notably, the Order from the Eastern
District of California incorrectly stated that Villalobos had
filed a previous Motion under § 2255 that had been
denied by the district court and the denial had been affirmed
by the Seventh Circuit. However, the records from
Villalobos' criminal case show that none of his motions
were or could have been classified as a motion under §
2255. Nor has the Court found any record of a § 2255
Motion filed by Villalobos in this district or elsewhere on
the publically available electronic records. The Government
also agrees that it does not appear that a § 2255 Motion
has been previously filed. Resp. at 3, n.1 (Doc. 5).
November 5, 2019, this Court dismissed Villalobos § 2241
Petition pursuant to § 2255(e). However, the Court
granted Villalobos leave to recharacterize his filing as a
Motion under § 2255 and file an amended motion, which
Villalobos did. Accordingly, the Court closed his § 2241
case and opened this new civil case pursuant to 28 U.S.C.
§ 2255 on November 22, 2019, and ordered the Government
to respond. In its response, the Government has conceded that
Villalobos' motion should be granted.
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).
Villalobos argues his conviction for carrying a firearm in
furtherance of a crime of violence pursuant to 18 U.S.C.
§ 924(c) violates the Constitution because §
924(c)'s residual clause is unconstitutionally vague. In
its response, the Government has chosen to waive procedural
default and agrees that Villalobos is entitled to relief on
“crime of violence” under § 924(c) is
defined as a felony offense that:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) [ ] by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the ...