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United States v. Mokol

United States District Court, N.D. Indiana, Hammond Division

August 2, 2019




         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]

         A. Overview of the Case

         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) (“[I]mposing an increased sentence under the residual clause . . . violates the Constitution's guarantee of due process.”). 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.

         B. Standard of Review

         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).

         C. Analysis

         Defendant claims that the Supreme Court declared unconstitutional the statutory basis for his 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.

         (1) Indiana Robbery Remains a Violent Felony

         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.

         (a) The “Fear” that Indiana Courts Require Satisfies the Elements 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) (“Fear of bodily injury or personal harm in the case of noncompliance with the robber's demands is required to support a conviction requiring a person be put in fear.”). 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) (“We are . . . bound by the Florida Supreme Court's interpretation of state law.”).

         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) (“[A] State is entitled to define its crimes as it sees fit.”); see also United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995) (“[B]ecause robbery in Virginia has as an element the use or threatened use of force, [the defendant's] robbery convictions were properly used as predicates under ACCA.”). 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.

         (b) Both Alternative Means of Committing Indiana Robbery ...

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