RAYDALE R. MITCHELL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MOTION FOR CERTIFICATE OF APPEALABILITY
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.
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).
petitioner would also include the more recent Supreme Court
ruling in Mathis v. United States, No. 15-6092.
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
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
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.
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.
Mathis v. United States, No. 15-6092, the Court
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)
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.
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.
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).
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).
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).
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)).
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.
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).
R. Mitchell is currently in custody at the United ! States
Penitentiary in Marion, Illinois.
presentence report concluded that Mitchell qualified as a
Career Offender as he had two or more prior convictions for a
crime of violence.
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."
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.
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:
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
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