Clark v. United States of America

Filing 10

ORDER & OPINION entered by Judge Joe Billy McDade on 2/4/14. IT IS ORDERED that Petitioner's Motion to Alter or Amend Judgment Pursuant to Rule 59(e) 9 is DENIED. SEE FULL ORDER. cc: Petitioner by Clerk. (FDT, ilcd)

E-FILED

Tuesday, 04 February, 2014 02:08:11 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
KENNETH CLARK,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 13-cv-1026

ORDER & OPINION
This matter is before the Court on Petitioner’s Motion to Alter or Amend
Judgment Pursuant to Rule 59(e) (Doc. 9). Petitioner seeks modification of the
judgment entered pursuant to the Court’s Order and Opinion (Doc. 7) denying
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (Doc. 1). For the reasons stated below, Petitioner’s Rule 59(e) Motion is
denied.
A motion to alter or amend judgment filed pursuant to Rule 59(e) may only
be granted if a movant clearly establishes that the court made a manifest error of
law or fact, or presents newly discovered evidence. LB Credit Corp. v. Resolution
Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). A manifest error is the “wholesale
disregard, misapplication, or failure to recognize controlling precedent.” Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal quotation marks
omitted). A movant may not advance in a Rule 59(e) motion arguments he should
have raised before judgment was entered. Sigsworth v. City of Aurora, Ill., 487 F.3d
506, 512 (7th Cir. 2007).

Petitioner points to a perceived manifest error of law in the Court’s
conclusion that Illinois state law applicable to Petitioner allowed for a sentence in
excess of one year of incarceration. He also discusses a case cited in his Reply and
argues it requires modification of the Court’s Order.
Petitioner’s Motion must be denied. Most importantly, he raises no new
ground that justifies relief. He has previously made all of these arguments before,
and they were all found to be without merit. Additionally, there was no error of law
by the Court, much less a manifest error.
As explained in the Court’s previous Order, Petitioner’s state drug conviction
from 1990 qualified as a prior felony drug offense. Under 21 U.S.C. § 841(b)(1)(A), a
prior conviction for a felony drug offense increases the minimum sentence for
Petitioner’s federal offense. A felony drug offense is one that is punishable by
imprisonment for more than one year. 21 U.S.C. § 802(44). Petitioner maintains
that 720 Ill. Comp. Stat. 570/410 required that the state court sentence him to
probation rather than incarceration, and thus his offense was not punishable by
more than one year of imprisonment. However, the statute of conviction for
Petitioner’s state offense specifies it is a Class 4 felony, which is punishable by a
sentence of incarceration between one and three years. 720 Ill. Comp. Stat.
570/402(c); 730 Ill. Comp. Stat. 5/5-4.5-45(a). The separate statutory provision that
Petitioner cites allows a judge to impose a sentence of only probation for first-time
offenders, but there is nothing in the provision that indicates it is mandatory for
any offenders who qualify. Rather, it says the court “may sentence him or her to
probation.” 720 Ill. Comp. Stat. 570/410 (emphasis added). This clearly indicates it

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is an option for the sentencing judge, not a mandate. Thus, Plaintiff’s offense was
still a prior conviction for a felony drug offense for sentencing purposes because it
was punishable by more than a year in prison. Petitioner’s counsel was not
ineffective for failing to raise this clearly meritless argument. Additionally, the
Court still does not find a certificate of appealability is appropriate, as reasonable
jurists would not debate this result.
Further, the case Petitioner cites as “factual support” for his argument,
Munoz-Pacheco v. Holder, 673 F.3d 741 (7th Cir. 2012), is not applicable. First, it is
not new material that would justify amending the judgment, nor is it factual
support. Second, it is not controlling on the issue before the Court. It discusses
immigration law and aggravated felonies, and does not involve any of the statutes
relevant to Petitioner’s case. This argument fails.
CONCLUSION
IT IS THEREFORE ORDERED that Petitioner’s Motion to Alter or Amend
Judgment Pursuant to Rule 59(e) (Doc. 9) is DENIED.

Entered this 4th day of February, 2014.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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