Ellis v. United States
| Decision Date | 30 October 2020 |
| Docket Number | Case No. 19-cv-1155-pp |
| Parties | ROBERT A. ELLIS, Petitioner, v. UNITED STATES OF AMERICA Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER DENYING MOTION TO VACATE, CORRECT OR SET ASIDE SENTENCE UNDER 28 U.S.C. §2255 (DKT. NO. 1), DENYING MOTION TO APPOINT COUNSEL (DKT. NO. 4), DISMISSING CASE AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
In May 2016, a grand jury returned a third superseding indictment charging the petitioner—along with co-defendants Sean Harvey and Broderick Moore—with robbery of a motor vehicle in violation of 18 U.S.C. §§2119(1) and 2, and using a firearm during a crime of violence in violation of 18 U.S.C. §§924(c)(1)(A)(ii) and 2. United States v. Robert Ellis, Case No. 15-cr-201, dkt. no. 59 (E.D. Wis. May 24, 2016). On February 8, 2017, the petitioner (represented by counsel) signed a plea agreement agreeing to plead guilty to both counts. Dkt. No. 87. On February 24, 2017, this court accepted the petitioner's guilty plea to Counts One and Two of the third superseding indictment. Dkt. No. 109.
On April 21, 2017, after the petitioner's lawyer had twice asked to withdraw, the petitioner—representing himself—filed a motion to withdraw his guilty plea. Dkt. No. 126. He asserted that he did not fully understand what he was being charged with at the time he entered the plea, and claimed that his lawyer had forced him to sign the plea agreement after the petitioner had told his lawyer he wanted to plead no contest. Id. at 1. He indicated that while he was taking full responsibility for his actions, "signing a plea for nine years was never [his] intentions for a firearm [he] never had knowledge of." Id. Two lawyers later, the petitioner's third lawyer asked to withdraw the motion. Dkt. No. 159. The court granted that motion. Dkt. No. 162.
On November 28, 2017, the court sentenced the petitioner to fifty-six months imprisonment on Count One (the carjacking count) and eighty-four months of imprisonment on Count Two (the §924(c) count) to run concurrently to the sentence imposed on Count One, for a total sentence of 140 months. Id. at 193. The court entered judgment on December 4, 2017. Id. The petitioner did not appeal.
On August 12, 2019, the petitioner filed this motion to vacate his sentence under 28 U.S.C. §2255. Ellis v. United States, Case No. 19-cv-1155, Dkt. No. 1 (E.D. Wis. Aug. 12, 2019). The motion first asserts that the petitioner received an eighty-four-month, consecutive sentence for "aiding and abetting a Car Jacking," but that he did not possess the weapon or know it would be used, and therefore that he is actually innocent. Id. at 3. He also states that "the predicate conviction for imposing the § 924 c sentence is not acategorical violent offense." Id. The petitioner asserts that this ground is "based upon a new decision from the Supreme Court." Id. Second, the motion asserts that he is actually innocent of the §924(c) charge because he didn't know that his co-defendant was armed or would use the gun during the carjacking, that the defendant was "held to an aider and abettor theory of liability" and that his conviction must be vacated under Rosemond v. United States, 572 U.S. 65 (2014). Id. at 4. He asserts that the issues raised in this ground "are based on new law." Id. at 5. Finally, the petitioner asserts that the motion is timely "under 28 U.S.C. § 2255 (f)(3)." Id. at 7.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides:
If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
Rule 4(b), Rules Governing Section 2254 Cases. Rule 1(b) gives the court the authority to apply this rule to other habeas corpus cases, such as motions under 28 U.S.C. §2255.
A petitioner seeking relief under §2255 must allege either that the sentence violated the Constitution or laws of the United States, that the court lacked jurisdiction, that the sentence exceeded the maximum authorized bylaw or that the sentence is otherwise subject to collateral attack. 28 U.S.C. §2255(a). At the screening stage, the court considers only whether the petitioner has raised claims that can be adjudicated in a §2255 proceeding, whether the petitioner has exhausted his claims and whether he filed the motion within the limitations period.
The petitioner's memorandum of law in support of the petition is composed of what appear to be excerpts from other briefs or court decisions interspersed with typewritten commentary. Dkt. No. 2. One of the typewritten entries says that "the decision in Davis renders the § 924 c term a nullity, as Movant is actually innocent thereof." Id. at 4. The "Davis" to which the petitioner refers is the United States Supreme Court's decision from last year, United States v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (2019).
28 U.S.C. §2255(f). The memorandum of law contains a cut-and-paste sentence from some other document that says, "The statutory definition adverts under section (f)(3) to a requirement that a decision is made retroactive to collateral attack by the Supreme Court." Dkt. No. 2 at 2. While this sentence makes no sense in the context of the petition, the court believes that the petitioner means to argue that because Davis was not decided until after he was convicted and sentenced, his petition is timely under §2255(f)(3) because Davis recognized a new right and made that right retroactively applicable to cases on collateral review.
The Supreme Court decided Davis on June 24, 2019, a year and a half after the court sentenced the petitioner. 139 S.Ct. at 2319. At least one district court in the Seventh Circuit has concluded that Davis recognized a new right that applies retroactively on collateral review, Carter v. United States, No. 16-cv-02184, 2019 WL 4126074, at *5 (C.D. Ill. Aug. 29, 2019), as has the Eleventh Circuit Court of Appeals, In re Hammoud, 931 F.3d 1032, 1037-1039 (11th Cir. 2019). This court will assume for the purposes of this decision only that Davis did recognize a new right and that it applies retroactively on collateral review. That means that the petitioner has timely raised his ground one issue, because he raised it within a year of the date the Supreme Court decided Davis.
3. Procedural Default
The petitioner did not appeal his conviction or sentence; he raises this claim for the first time in his §2255 motion.
A claim cannot be raised for the first time in a § 2255 motion if it could have been raised at trial or on direct appeal. Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). . . . A federal prisoner cannot bring defaulted claims on collateral attack unless he shows both cause and prejudice for the default. Hale v. United States, 710 F.3d 711, 713-14 (7th Cir. 2013); Gant v. United States, 627 F.3d 677, 683 (7th Cir. 2010). Absent a showing of both cause and prejudice, procedural default will only be excused if the prisoner can demonstrate that he is "actually innocent" of the crimes of which he was convicted. Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008).
McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016).
Normally, the doctrine of procedural default would bar the petitioner's Davis argument, because he did not raise it before this court and did not appeal it to the Seventh Circuit. But the petitioner may overcome procedural default if he can show that he had cause for his failure to raise the issue earlier and actual prejudice. Cross v. United States, 892 F.3d 288, 294 (7th Cir. 2018) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). The petitioner easily can show cause for his failure to raise the Davis argument before this court at the trial stage or on appeal because, as the court noted above, the Supreme Court didn't decide Davis until after the petitioner was sentenced, and the decision came down after the petitioner's deadline to file his appeal (which would have been December 18, 2017, under Fed. R. App. P. 4(b)(1)(A)(i)). The petitioner has not procedurally defaulted this claim.
The Supreme Court's decision in Davis, however, does not apply to the petitioner. Section 924(c) "authorizes heightened criminal penalties for using or carrying a firearm 'during and in relation to,' or possessing a firearm 'in furtherance of any federal 'crime of violence or drug trafficking crime.'" Davis, 139 S.Ct. at 2324. The statute defines "crime of violence" in "two subparts—the first known as the elements clause, and the second [known as] the residual clause." Id. Section 924(c)(3)(A) is the "elements" clause; it defines a "crime of violence" as an ...
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