Hrobowski v. United States

904 F.3d 566
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 17, 2018
DocketNo. 16-3549
StatusPublished
Cited by12 cases

This text of 904 F.3d 566 (Hrobowski v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hrobowski v. United States, 904 F.3d 566 (7th Cir. 2018).

Opinion

Kanne, Circuit Judge.

In Johnson v. United States , the Supreme Court held that the so-called residual clause of the Armed Career Criminal Act is unconstitutional. --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Welch v. United States , the Court determined that its decision in Johnson should apply retroactively. --- U.S. ----, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). So a prisoner who was sentenced under the unconstitutional residual clause can move to vacate his sentence, as long as the error affected his sentence. Van Cannon v. United States , 890 F.3d 656, 661 (7th Cir.2018).

At issue in this case is whether demonstrating that a Johnson error occurred allows a petitioner to collaterally attack his sentence on other grounds in a successive § 2255 petition. In this case, the petitioner cannot. His other basis for challenging his sentence is procedurally barred and Johnson does not serve as a way around that bar. Accordingly, we affirm the district court's denial of the petition.

I. BACKGROUND

A criminal defendant is subject to an enhanced sentence under the Armed Career Criminal Act ("ACCA") if he has previously been convicted of three or more violent felonies. 18 U.S.C. § 924(e). Patrick Hrobowski was convicted of two federal firearms offenses in 2006 and sentenced to 264 months' imprisonment under the ACCA based on four prior Illinois state-law convictions: aggravated battery, second-degree murder, aggravated discharge of a firearm, and aggravated fleeing from a police officer. His conviction was affirmed on direct appeal.

Hrobowski has since moved several times to vacate his sentence under 28 U.S.C. § 2255. Section 2255 allows a prisoner to vacate his sentence if he can demonstrate *568that it was imposed in violation of the Constitution, that the court lacked jurisdiction to impose the sentence, that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Successive § 2255 petitions must be certified by a panel of the appropriate court of appeals to contain newly discovered evidence or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h).

Hrobowski first moved to vacate his sentence based on alleged jurisdictional problems and ineffective assistance of counsel. The motion was denied, and neither the district court nor this court granted a certificate of appealability. Hrobowski then sought authorization to file a successive § 2255 petition alleging a violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). That application was also denied. He filed a third petition based on Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The petition was denied on the merits, though it should have been dismissed for lack of jurisdiction as it was never authorized by this court.

In 2015 Hrobowski again sought authorization to file a successive § 2255 petition following the U.S. Supreme Court's decisions in Johnson and Welch , which addressed the "residual clause" found in the ACCA. The ACCA provides that any person convicted of certain firearms offenses who had three previous convictions for a violent felony or serious drug offense is subject to an enhanced sentence. 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony" as:

"any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ...."

18 U.S.C. § 924(e)(2)(B) (emphasis added).

The phrase "or otherwise involves conduct that presents a serious potential risk of physical injury to another" is known as the residual clause. In Johnson , the Court found this clause unconstitutionally vague.

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Bluebook (online)
904 F.3d 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hrobowski-v-united-states-ca7-2018.