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Mitchell v. United States

United States Court of Appeals, Seventh Circuit

December 20, 2016

RAYDALE R. MITCHELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MOTION FOR CERTIFICATE OF APPEALABILITY

         Comes Now, Raydale R. Mitchell, petitioner pro se, files this instant Motion for Certificate of Appealability in light of the recent denial of his 28 U.S.C. § 2255 by the United States District Court For The Western District of Wisconsin, on October 31, 2016. Raydale R. Mitchell seeks a certificate of appealability from the court of appeals under Federal Rule of Appellate Procedure 22.

         SUMMARY

         Petitioner Raydale R. Mitchell, previously filed a pro se motion under 28 U.S.C. § 2255, seeking to vacate his conviction under the Supreme Court ruling in Johnson v. United States, 135 S.Ct. 2551 (2015).

         Additionally, petitioner would also include the more recent Supreme Court ruling in Mathis v. United States, No. 15-6092.

         Petitioner contends that in light of Johnson and Mathis his prior convictions for Illinois Armed Robbery, 720 ILCS 5/18-2(a)(b), are no longer crimes of violence.

         In Johnson v. United States, the court held:

The Supreme Court, Justice Scalia, held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act (ACCA) violates the Constitution's guarantee of due process, overruling James v. U.S., 550 U.S. 92, 127 S.Ct. 1586, 167 L.Ed.2d 532, and Sykes v. U.S., ___ U.S. ___, 131 S.Ct. 2267, 180 L.Ed.2d 60 and abrogating U.S. v. White, 571 F.3d 365, U.S. v. Daye, 571 F.3d 225, and U.S. v. Johnson, 616 F.3d 85.

         The Supreme Court held:

The government violates the Due Process Clause by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. U.S.C.A. Const Amend. 5.

         The government is not in the position to request that this court deny petitioner a certificate of appealability because the government sentenced petitioner under the ACCA's "residual clause" and these factors alone violated the Constitution1s guarantee of due process. See Johnson v. United States, 135 S.Ct. 2551 (2015). No procedural bar can eliminate a due process claim.

         In Mathis v. United States, No. 15-6092, the Court held:

Mathis v. United States, No. 15-6092, S.Ct. (June 23, 2016) (holding that the "categorical approach" requires that a sentencing court look only to the elements of the statute of conviction, and therefore that courts may not decide whether to count a conviction by determining which of multiple alternative "means of commission" a defendant used to commit an offense, even if those means are explicitly listed in the statute of conviction). In his concurring opinion, Justice Kennedy specifically discussed his concerns regarding the operation of the categorical approach, and suggested that Congress could amend the statutory provisions to address some of the ongoing concerns. See id. at *13 (Kennedy concurrence).

(End of Report Excerpt)

         Additionally, in Supreme Court case Mathis v. United States, S.Ct. No. 15-6092, the Supreme Court held that if a state statute provides alternative means for committing an element of a crime, it does not qualify defendant to sentencing enhancement as a violent offender under ACCA.

         PROCEDURAL HISTORY

         Petitioner Raydale R. Mitchell, in 2012, appearing before District Judge Barbara Crabb, For the Western District of Wisconsin, Mitchell pleaded guilty to distributing heroin in violation of 21 U.S.C. § 841(a)(1). Judge Crabb sentenced Mitchell to 168 months of imprisonment.

         According to the presentence report, Mitchell had two prior convictions for crimes of violence, Armed Robbery in the Circuit Court for Cook County Illinois (88 CR1639602); and Aggravated Battery in the Circuit Court for Dane County, Wisconsin (case No. 03CF909). This made Mitchell a Career Offender under United States Sentencing Guidelines § 481.1(a) and (b)(3). His offense level was 29, after three levels had been deducted for acceptance of responsibility, and his guideline sentencing range was 151 to 188 months. Alternatively, Mitchell had an identical offense level of 29 based on the amount of heroin involved in the transactions, which placed him at level 30, U.S.S.G. § 2D1.1(a)(5) and (c)(5), minus the three-level decrease for acceptance of responsibility, plus two levels for his role as an organizer, U.S.S.G. § 3B1.1(c).

         According to the presentence investigation report's statement that the total amount of distributed heroin was 893.64 grams (795 grams estimated by the informants working with the government, along with only 98.64 grams actually produced and bought in the controlled buy).

         Mitchell has filed a motion for postconviction relief under 28 U.S.C. § 2255/ alleging that he was denied the effective assistance of counsel in his criminal proceedings. He followed with a motion to amend his petition to include an argument that his sentence under the career-offender sentencing guideline is unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015).

         In a recent case, the full panel of the Court of Appeals for the Seventh Circuit concluded that the "residual clause" of guideline § 4B1.2(a) was unconstitutionally vague. United States v. Hurlburt, No. 15-1686, 2016 WL 4506717 at *7 (7th Cir. Aug. 29, 2016) (en banc) (citing Johnson v. United States, 135 S.Ct. 2551 (2015)).

         Mitchell contends that his prior conviction for Illinois Armed Robbery under 720 ILCS 5/18-2(a)(b) are no longer crimes of violence and no longer survives the categorical approach.

         JURISDICTION

         In 2012, appearing before United States District Judge Barbara . Crabb, For The Western District of Wisconsin, Mitchell was sentenced to 168 months of imprisonment. See United States v. Mitchell, No. 11-cr-83-jdp (W.D. Wis. June 1, 2012).

         Raydale R. Mitchell is currently in custody at the United ! States Penitentiary in Marion, Illinois.

         CAREER OFFENDER

         The presentence report concluded that Mitchell qualified as a Career Offender as he had two or more prior convictions for a crime of violence.

         As relevant here, § 4B1.2(a)(2) defines "crime of violence" as including "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that... (2) is burglary of a dwelling...or otherwise involves conduct that presents a serious potential risk of injury to another."

         First of all, let's address the issue that the District Court's analysis guides them to the conclusion that even if Mitchell was not designated as a Career Offender, he would have received the same sentence using the drug quantity and organizer guidelines. This is incorrect. The court does not accurately reflect the fact that if Mitchell sheds the career offender label he would fully be eligible for the two-level reduction commonly known as "Drugs Minus Two." This would reduce his guidelines range by two level to a 27, significantly lower than his previous guideline range of 151-188 months. Mitchell would have received a sentence not only lower than the 168 months he received, but also lower than the 151-188 guideline range he was deemed by the. presentence report. So by this fact alone, the district court's analysis that Mitchell would have received the same sentence without the career offender enhancement, falls short on the record and is incorrect.

         The District Court's Assumption That Mitchell's Prior Conviction For Armed Robbery Is Still A Violent Felony Under The Force Clause Is A Question Of Prejudice:

         Even if the Court entertains the Government's contention that Mr. Mitchell's motion is "ultimately and exclusively reliant" on Johnson v. United States, 599 U.S. (2010) (Johnson I), lacks merit. Whether a prior conviction that has been invalidated by Johnson II's holding striking the residual clause still qualifies under the force clause is a question of prejudice that must be answered . under current law, as required by the Supreme Court's holding in Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). See Mosby v. Senkowski, 470 F.3d 515, 524 (2nd Cir. 2006) ("the Supreme Court has held that current law should be applied retroactively for purposes of determining whether a party has demonstrated [Strickland] prejudice").

         As numerous courts have found, the availability of the residual clause to support a career offender sentence establishes a due process violation sufficient to trigger an inquiry into ...


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