JOAN H. LEFKOW, District Judge.
Randy D. Velleff moves to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. (Dkt. 1.)
On May 31, 2016, Velleff moved the Seventh Circuit Court of Appeals for leave to file a second petition, seeking to use Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L. Ed. 2d 569 (2015), to challenge his designation as a career offender under U.S.S.G. § 4B1.1. The Seventh Circuit denied that request but, sua sponte, granted Velleff leave to challenge his conviction under § 924(c).
Section 2255 allows a person held in federal custody to petition the sentencing court for an order vacating, setting aside, or correcting his sentence. 28 U.S.C. § 2255(a). Relief under § 2255 is "reserved for extraordinary situations." Hays v. United States, 397 F.3d 564, 566 (7th Cir. 2005 (quoting Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). A petitioner must establish "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Id. at 566-67 (quoting Prewitt, 83 F.3d at 816). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
Velleff was sentenced to a mandatory minimum of 60 months' imprisonment on the § 924(c)(1)(A) conviction, which applies to a defendant who uses or carries a firearm during the commission of any "crime of violence." A "crime of violence" is defined as a felony that either "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," 18 U.S.C. § 924(c)(3)(A) (force clause), or "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the [felony]," id. § 924(c)(3)(B) (residual clause). Here, as stated in the indictment, the specific underlying crime of violence was count 1, Hobbs Act conspiracy. (See cr. dkt. at 7.)
In Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L. Ed. 2d 569 (2015), the Supreme Court found unconstitutionally vague the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(c)(2)(b)(ii). Velleff argues that his five-year sentence under § 924(c) cannot be sustained because Johnson renders that statute's similar residual clause unconstitutionally vague. The government disputes this assertion and further argues that Velleff's Johnson claim is untimely and has been procedurally defaulted for failure to raise it on direct appeal as well as that Hobbs Act conspiracy is a crime of violence under 924(c)'s force clause.
Much of the government's opposition is dedicated to the argument that § 924(c)'s residual clause is not unconstitutional post-Johnson. Addressing that issue first allows the court to more easily explain why Velleff's petition is neither time barred nor procedurally defaulted. In Johnson, the Supreme Court held that ACCA's residual clause, 18 U.S.C. § 924(e)(2), is unconstitutionally vague. Johnson, 135 S. Ct. at 2557. Applying the new constitutional rule announced in Johnson,
Generally, the statute of limitations for filing a successive motion is one year from the date the petitioner's conviction becomes final. 28 U.S.C. § 2255(f)(1). A motion, however, may also be filed within one year after a right is newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3). Johnson was decided on June 26, 2105. The government argues that Velleff did not file his petition with the court until January 20, 2017, more than one year after Johnson, and therefore he has not complied with § 2255(f)(3). The court acknowledges that certain docket entries could be seen as supportive of this interpretation. But Velleff sought leave to file a successive § 2255 petition on May 31, 2016, and the Seventh Circuit, in granting that request, specifically stated "The clerk of court will transfer the papers to district court for filing as a § 2255 action." (Dkt. 2 at 3.) Therefore, Velleff's motion was filed June 17, 2016.
The government argues that Velleff has procedurally defaulted his claim by not raising it on appeal. Generally, a defendant is barred from raising an argument on collateral review that was not raised on direct appeal. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51, 126 S.Ct. 2669, 2682, 165 L. Ed. 2d 557 (2006). The court may, however, excuse procedural default if the defendant can demonstrate either "(1) both good cause failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims; or (ii) that the district court's refusal to consider the claims would result in a fundamental miscarriage of justice." McCleese v. United States, 75 F.3d 1174, 1177-78 (7th Cir. 1996).
Velleff argues that he had good cause for not making his argument on direct appeal because a claim based on Johnson was non-existent until 2015. In Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L. Ed. 2d 1 (1984), the Supreme Court held that when "a constitutional claim is so novel that its legal basis is not reasonably available to counsel," good cause is demonstrated. Id. at 16. Further, the Court explained that when it explicitly overrules one of its precedents and applies that decision retroactively, "there will almost certainly have been no reasonable basis upon which an attorney previously could have urged" for the newly adopted position. Id. at 17.
Because § 924(c)'s residual clause is unconstitutional, for Velleff's conviction to stand, it must rest on § 924(c)'s force clause. Velleff argues that Hobbs Act conspiracy does not qualify as a crime of violence under the force clause because its elements do not satisfy the clause's requirement of the "use, attempted use, or threatened use of physical forces against the person or property of another." (Dkt. 29 at 11.) "In determining whether a predicate offense qualifies as a `crime of violence' under § 924(c), courts use a categorical approach looking only to the statutory elements of the offense and not to the particular facts underlying the offense." United States v. Coleman, No. 14CR 664, 2016 WL 1435696, at *2 (N.D. Ill. Apr. 12, 2016) (citing Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276, 2283, 186 L. Ed. 2d 438 (2013)). "To prove . . . Hobbs Act conspiracy, the government must establish that two or more persons agreed to commit an unlawful act, and that the defendant knowingly and intentionally joined in the agreement." United States v. Haynes, 582 F.3d 686, 698 (7th Cir. 2009), abrogated on other grounds by United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012).
The government seems to argue that "[b]ecause the conspiracy prohibition is embedded within § 1951, the agreement is one to take property from someone by force," and therefore the agreement itself threatens the use of force. (Dkt. 28 at 14.) As such, "the robbery conspiracy includes, as an element, the threatened use of force, and thereby qualifies as a `crime of violence' under the force clause." (Id.) Only two elements are necessary to prove Hobbs Act conspiracy: (1) an agreement to commit an unlawful act, and (2) knowingly and intentionally joining in the agreement. Neither of these elements categorically requires the use, threatened use, or attempted use of force.
Moreover, numerous courts have explicitly rejected the argument that Hobbs Act conspiracy satisfies the force clause's definition of a crime of violence.
As neither of the elements of Hobbs Act conspiracy requires a conspirator to use, attempt, or threaten the use of physical force, Hobbs Act conspiracy does not categorically qualify as a crime of violence under § 924(c)'s force clause.
For the foregoing reasons, Velleff's 28 U.S.C. § 2255 motion (Dkt. 1) to vacate his mandatory five-year sentence imposed under 18 U.S.C. § 924(c)(1)(A) is granted. Defendant's counsel shall promptly confer with the assigned Assistant United States Attorney to discuss potential dates for Velleff's resentencing. A status hearing is scheduled for April 25, 2018, at 9:00 a.m.