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Yates v. United States

United States District Court, W.D. Wisconsin

June 17, 2016

ROBERT YATES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          BARBARA B. CRABB, District Judge

         Petitioner Robert Yates has moved for post conviction relief under 28 U.S.C. § 2255, challenging his 2003 sentence as an armed career criminal. At the time of his sentencing he had six prior convictions that qualified him for an enhanced sentence under 18 U.S.C. §924(e) of the Armed Career Criminal Act. He contends that under the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Chambers v. United States, 555 U.S. 122, 128 (2009), only two of his prior convictions are still qualifying convictions, one short of the necessary three, which means that he no longer qualifies as an armed career offender and is entitled to resentencing.

         Petitioner's challenge turns on whether his prior Wisconsin conviction for battery by a prisoner was a "violent felony, " as that term is used in § 924(e)(2)(B)(i). I conclude that it was and that his post conviction motion must be denied.

         RECORD FACTS

         Petitioner Robert Yates was indicted in 2002 on one count of being a felon in possession of a gun, in violation of 18 U.S.C. § 922(g). When he was sentenced in 2003, he was found to have 37 criminal history points, placing him in criminal history category 37. The probation office determined that he had six qualifying convictions, twice as many as required to make him an armed career criminal under 18 U.S.C. § 924(e)(2)(B). One of these was for manufacture or delivery of cocaine, three were for escape (two instances of failing to report to serve a sentence and one instance of leaving a facility with permission and failing to return), one for battery by a prisoner and one for substantial battery-intend bodily harm. (Under § 924(e)(1), a person convicted under 18 U.S.C. § 922(g) who has three previous convictions for a violent felony or a serious drug offense is subject to enhanced sentencing.) At sentencing, I concluded that the one drug conviction was a "serious drug offense" and the other five convictions were "violent felonies" under § 924(e)(2)(B), making petitioner an Armed Career Criminal subject to a sentence of at least 15 years. § 924(e)(1). I imposed a sentence of 195 months. Had petitioner not qualified as an armed career criminal, his maximum sentence would have been ten years under 18 U.S.C. § 924(a)(1).

         Petitioner never took a direct appeal of his sentence or sought post conviction relief. until he filed his present motion. The government does not take the position that petitioner's failure to appeal or to challenge his escape convictions amounted to a procedural default of those claims, although it has been seven years since the Supreme Court decided in Chambers, 555 U.S. 122, that failure to report to a penal institution does not involve conduct presenting a serious potential risk of physical injury to another, and therefore is not a "violent felony" under the Armed Career Criminal Act. Rather, the government assumes that if petitioner prevails on his challenge to his battery by a prisoner conviction, the court would not consider his three prior convictions for escape as qualifying offenses.

         OPINION

         When petitioner was convicted and sentenced of the crime of battery by prisoner, the applicable Wisconsin statute read as follows:

Any prisoner confined to a state prison or other state, county or municipal detention facility who intentionally causes bodily harm to an officer, employee, visitor, or another inmate of such prison or institution, without his or her consent, is guilty of a Class H felony.

Wis. Stat. § 940.20(1) (1995-96). At the time, "bodily harm" was defined in Wis.Stat. § 939.22(4) as meaning "physical pain or injury, illness or any impairment of physical condition."

         Petitioner contends that this statute does not meet the statutory category of "violent felony" under 18 U.S.C. § 924(e)(2)(B), which provides that

the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year . . . that
(i) has as an element the use, attempted use or threatened use of physical force against the person of another [this is referred to as the "elements" clause or the "force" clause]; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another"; ([this italicized clause is known ...

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