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Villalobos v. United States

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

January 2, 2020

FRANCISCO A. VILLALOBOS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         In 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).

         Villalobos 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.

         Roughly 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).

         Villalobos 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).

         On 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.

         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, 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 the merits.

         A “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 another, or
(B) [ ] by its nature, involves a substantial risk that physical force against the person or property of another may be used in the ...

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