United States v. Mokol
| Decision Date | 02 August 2019 |
| Docket Number | Case No. 2:16-cv-302-JVB |
| Parties | UNITED STATES OF AMERICA v. MICHAEL LEE MOKOL, JR. |
| Court | U.S. District Court — Northern District of Indiana |
(arising out of 2:08-cr-97-JVB-APR)
Defendant Michael Lee Mokol, Jr., moves pro se for relief under 28 U.S.C. § 2255, in response to the Supreme Court's holding in Johnson v. United States. For the reasons below, this Court denies Defendant's motion for § 2255 relief. Additionally, attorney Kerry C. Connor's motion to withdraw is granted.1
After a jury convicted Defendant of being a felon in possession of firearms and ammunition, this Court sentenced Defendant to 262 months' imprisonment. (DE 129.) This Court also found that Defendant was an armed career criminal under the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e)(2)(B). The ACCA provided for a mandatory minimum fifteen-year sentence for Defendant's crimes because Defendant had three previous convictions for a "violent felony." 18 U.S.C. § 924(e)(1). A felony is violent if it "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the "elements clause"). 18 U.S.C. § 924(e)(2)(B)(i). Alternatively, the felony could "involve[] conduct that presents a serious potential risk of physical injury to another" (the "residual clause"). 18 U.S.C. §924(e)(2)(B)(ii). Recently, however, the Supreme Court declared the residual clause unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (). The elements clause, however was not "call[ed] into question." Id. Defendant then timely filed his § 2255 motion to force a Johnson review of his sentence.
A defendant in federal custody may launch a collateral attack on his sentence by arguing "that the sentence was imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A defendant who seeks relief under § 2255 is entitled to a hearing, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). However, "[a] § 2255 motion is not a substitute for direct appeal." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Failure to raise an issue in a direct appeal will generally preclude the defendant from raising it in a § 2255 motion unless he can show "both good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or [that] a refusal to consider the issue would lead to a fundamental miscarriage of justice." Id. Additionally, if a Supreme Court opinion appears to render a previously valid sentence invalid (such as by declaring unconstitutional a statute used to enhance a sentence), the defendant has one year from the date of that opinion to raise the new issue. 28 U.S.C. § 2255(f)(3).
Defendant claims that the Supreme Court declared unconstitutional the statutory basis forhis enhanced sentence. His claim, however, depends on an interpretation of the Indiana robbery statute that Indiana courts have rejected. He also argues that his robbery convictions should not have been counted as three separate violent felonies, but this argument should have been raised in a direct appeal and is therefore waived.
Defendant had three previous convictions for Indiana robbery, which is the "knowing[] or intentional[] tak[ing of] property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear." Ind. Code § 35-42-5-1(a). Defendant insists that, because of the "fear" clause, Indiana robbery could only qualify as a violent felony under the now-unconstitutional residual clause.
The Seventh Circuit, in United States v. Duncan, 833 F.3d 751 (7th Cir. 2016), rejected the exact argument Defendant advances. In Duncan, the defendant had three prior convictions for Indiana robbery. Id. at 753. The court examined state case law and found that Indiana courts interpreted "putting any person in fear" as threatening physical injury. Id. at 756; see also Rickert v. State, 876 N.E.2d 1139, 1141 (Ind. Ct. App. 2007) (). On that basis, the court held that Indiana robbery remains a violent felony under the ACCA's "still-valid elements clause." Id. at 752. Defendant may dispute this interpretation of "fear," but that battle does not belong here, for this Court must defer to a state court's interpretation of its own laws. See Johnson v. United States, 559 U.S. 133, 138(2010) ().
Defendant first attempts to bypass Duncan by arguing that "his prior convictions for Indiana robbery were not held to be ACCA predicates under" Duncan. (DE 156 at 5.) Had the Duncan opinion consisted of a single word—"Affirmed"—this argument might have merit. Instead, the Seventh Circuit held that Indiana robberies in general are violent felonies, and this Court must follow that holding. Next, Defendant notes that the Fourth Circuit held that a North Carolina robbery was not a violent felony. United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016). Yet, this is because a North Carolina robbery can be committed with only minimal force, which does not satisfy the elements clause. Id. at 804. Robberies under Indiana and North Carolina law are thus different, and this Court cannot impose a North Carolina court's interpretation of its own laws onto an Indiana statute. Cf. United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (); see also United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995) (). Lastly, Defendant contends he "was not convicted in 2016, under" Duncan. (DE 156 at 5.) But this argument fails because the Indiana robbery statute has not changed in any relevant respect since its enactment.2 Simply put, Duncan controls.
Next, Defendant argues that the Supreme Court's decision in Mathis v. United States, 136 S. Ct. 2243 (2016), changed how courts examine criminal statutes that provide multiple methodsof violating it, only some of which would constitute a violent felony. Prior to Mathis, courts faced with this situation could look to other documents to determine which version of the crime the defendant committed and whether that version counted as a violent felony. Shepard v. United States, 544 U.S.13, 26 (2005). In Mathis, the Supreme Court created a distinction between alternative elements and alternative means. Mathis, 136 S. Ct. at 2256. If the statute lists alternative elements, then courts will still apply a Shepard analysis.3 Id. But if the statute lists alternative means, then Mathis will not allow the conviction to qualify as a violent felony when "some but not all" of those means would qualify.4 Id. at 2250. On the other hand, if each of the means would qualify, the conviction qualifies. United States v. Edwards, 836 F.3d 831, 835 (7th Cir. 2016) () (applying Mathis).5
Here, Mathis does not save Defendant because, as explained above, an Indiana robbery committed "by putting any person in fear" necessarily involves a threatened use of force. See Rickert, 876 N.E.2d at 1141. In other words, every alternative means of committing Indiana robbery constitutes a violent felony. See Duncan, 833 F.3d at 755 (). Defendant also cites multiple post-Mathis cases, but none of them involve Indiana robbery. (See DE 156 at 13-14.) Moreover, he neglects to mention that Duncan was alsoa post-Mathis case. As it stands, Indiana robbery remains a violent felony.
Next, Defendant argues that because his robberies were "clearly a conviction [on the basis of] an aiding and abetting theory . . . [he] did not commit . . . acts which constitute" violent felonies. (DE 17-18.) This argument might have held water had Indiana imposed a lighter sentence for mere accomplices, but under Indiana law, one who "knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense." Ind. § 35-41-2-4. Put another way, Indiana decided to punish the accomplice as if he were the actual perpetrator. This Court must respect that decision and thus cannot distinguish between the two. Cf. United States v. Groce, 999 F.2d 1189, 1191-92 (7th Cir. 1993) (). See also Gonzales v. Duenas-Alvarez, 549 U.S 183, 189 (2007) ( ).
Defendant also insists the underlying facts of the robberies show they were not violent felonies, noting that he "did not participate in the active crime ....
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