Rutledge v. United States of America
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 4/28/14. Petitioner's 1 Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §2255 ("2255 motion") is DISMISSED as untimely. No Certificate of Appealability shall issue from the Court. IT IS SO ORDERED. SEE FULL WRITTEN ORDER. cc: Petitioner by Clerk. (FDT, ilcd)
E-FILED
Monday, 28 April, 2014 03:24:13 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
TOMMY L. RUTLEDGE
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 14-cv-1150
ORDER & OPINION
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255, filed on April 21, 2014. (Doc. 1).1 In
2012, Petitioner was convicted of conspiracy to manufacture methamphetamine in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) upon a plea of guilty. (Judgment,
United States v. Rutledge, No. 11-cr-10085 (C.D. Ill. 2012), Doc. 20). He was
sentenced to a term of 120 months’ imprisonment and judgment was entered on
July 24, 2012. (Id.). However, judgment was later amended on March 6, 2014 to
make the restitution Petitioner was previously order to pay, jointly and severally
liable as to him and another criminal defendant in a separate case. (No. 11-cr10085, May 6, 2014 Minute Entry, Doc. 23).
Section 2255 of Chapter 28 of the United States Code provides a basis for
attacking a federal sentence on the grounds that “the sentence was imposed in
Incidentally, the Court is aware that a virtually identical § 2255 motion—in
form, substance and even typeface—was filed by or on behalf of Richard E. Harr on
the same day as the instant motion. Both petitioners reside in the same Oakdale
Federal Detention Center in Louisiana. The same reasons discussed in the Court’s
Order and Opinion for disposing of Petitioner Harr’s 2255 apply here.
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violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires district courts to conduct preliminary
reviews of § 2255 motions. The rule states in relevant part: “If it plainly appears
from the motion, any attached exhibits, and the record of the prior proceedings that
the moving party is not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is not dismissed, the judge
must order the United States Attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may order.”
In the present motion, Petitioner presents two grounds upon which he claims
he is being held in violation of the Constitution, laws, or treaties of the United
States. First, he argues that Alleyne v. United States, 133 S. Ct. 2151 (June 17,
2013), requires that sentencing enhancements must be properly noticed in an
indictment and proven to a jury beyond a reasonable doubt. (Doc. 1 at 4). Second,
Petitioner argues that pursuant to Descamps v. United States, 133 S. Ct. 2276 (June
20, 2013), a prior conviction for possession of methamphetamine could not be used
as a predicate for application of a sentencing enhancement under 21 U.S.C. §851.
(Doc. 1 at 5). These grounds are without merit.
As an initial matter, Petitioner’s 2255 motion is untimely on its face. Section
2255(f) provides:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of—
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(1)
the date on which the judgment of conviction becomes
final;
(2)
the date on which the impediment to making a motion
created by governmental action in violation of the Constitution or laws
of the United States is removed, if the movant was prevented from
making a motion by such governmental action;
(3)
the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(4)
the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
Petitioner did not appeal his judgment after he was sentenced, so the conviction
became final when the deadline for filing a notice of appeal expired. Clarke v.
United States, 703 F.3d 1098, 1100 (7th Cir. 2013). Petitioner was sentenced and
judgment was entered on July 24, 2012. (No. 11-cr-10085, Doc. 20). Petitioner had
fourteen days from the entry of that judgment to file a notice of appeal. Fed. R. App.
P. 4(b). Therefore, Petitioner’s conviction became final on August 7, 2012, when his
time to file a notice of appeal expired. Under § 2255(f), Petitioner had one year from
the date upon which his conviction became final—August 7, 2012—to file his § 2255
Motion, which means his petition was due to be filed on or before August 7, 2013.
Although Petitioner’s judgment was amended on March 6, 2014, the
amendment had no effect on the statute of limitations imposed by 28 U.S.C. §
2255(f). Section 3582(b) of Chapter 18 of the United States Code provides that:
Effect of finality of judgment.--Notwithstanding the fact that a
sentence to imprisonment can subsequently be--
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(1) modified pursuant to the provisions of subsection (c);
(2) corrected pursuant to the provisions of rule 35 of the Federal
Rules of Criminal Procedure and section 3742; or
(3) appealed and modified, if outside the guideline range,
pursuant to the provisions of section 3742;
a judgment of conviction that includes such a sentence constitutes a
final judgment for all other purposes.
(emphasis added). The clear import of the above-quoted language is that despite
Petitioner’s judgment being amended on March 6, 2014, the July 24, 2012 judgment
and sentence constituted final judgment “for all other purposes,” such phrase
necessarily encompassing the purpose of determining when the § 2255(f) statute of
limitations began to run. Other district courts in this judicial circuit and Courts of
Appeals from other judicial circuits have similarly concluded that resentencing does
not reset the clock for purposes of applying the statute of limitations imposed by 28
U.S.C. § 2255(f), see e.g., Morning v. United States, No. 09-CV-252-WDS, 2012 WL
4387851, at *3 (S.D. Ill. Sept. 25, 2012); United States v. Steele, No. 97-C-7040, 1998
WL 26173, at *1 (N.D. Ill. January 15, 1998); United States v. Sanders, 247 F.3d
139, 143 (4th Cir. 2001); United States v. Schwartz, 274 F.3d 1220, 1224 (9th Cir.
2001).
The Court’s conclusion is buttressed by the recent case of White v. United
States, No. 13-3396, 2014 WL 997560 (7th Cir. Mar. 14, 2014). In White, a 2255
petitioner contended that a sentence reduction bestowed in 2012 restarted the
limitation’s time period under § 2255(f). 2014 WL 997560 at *1. The petitioner had
originally been sentenced on November 29, 2006. White v. United States, No. 2013
WL 5323536, at *1 (C.D. Ill. Sept. 20, 2013). The White court held that a sentence
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reduction did not reset the clock under § 2255(f) because the petitioner was not
“sentenced anew” in that the district court did not receive any evidence, reopen any
issue decided in the original sentencing, hold a hearing or pronounce a new
sentence. 2014 WL 997560 at *2.
In this case, the Court similarly refrained from sentencing Petitioner anew;
instead the Court merely added a condition that the restitution amount Petitioner
was previously order to pay, was to be jointly and severally liable between him and
his separately charged co-conspirator, Teresa Peitzmeier, who had just been
convicted on February 28, 2014 for the same crime as Petitioner. (See No. 11-cr10133, Doc. 26). Both Petitioner and Ms. Peitzmeier had been part of the same
conspiracy to manufacture and distribute methamphetamine and both were
identified in the affidavit accompanying the complaint that initiated Petitioner’s
arrest and subsequent conviction. (See Doc. 2 at 3). The Court did not alter
Petitioner’s sentence in any way such as modifying the time he had to serve in
custody or on supervised release. The Court held no hearing nor pronounced a new
sentence. See 2014 WL 997560 at *2. Moreover, unlike in White, where the
petitioner actually received a reduction in sentence, here, Petitioner’s 120 months’
sentence was not modified in any manner.
Therefore, the proper start date for Petitioner to file his 2255 motion occurred
in 2012 not 2014, and Petitioner was required to file a timely 2255 motion on or
before August 7, 2013.
Since Petitioner’s motion is premised upon the purported retroactive
application of two recent Supreme Court cases, this Court has considered whether
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Petitioner’s motion can be deemed timely under § 2255(f)(3). Section 2255(f)(3)
permits the one year statute of limitation for filing a 2255 motion to begin running
on the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review. This exception does not apply
to Petitioner’s 2255 motion. Although both cases upon which Petitioner relies were
decided less than one year ago—in June 2013—neither case contains rules or rights
that have been made retroactively applicable to cases on collateral review by the
Supreme Court, or any other lesser court.
As for the case of Alleyne v. United States, 133 S. Ct. 2151 (June 17, 2013),
the Seventh Circuit has already explicitly 1) recognized that the new rule
announced in that case was not held by the Supreme Court to apply retroactively on
collateral attack and 2) prognosticated that it is highly unlikely Alleyne will ever be
held to apply retroactively on collateral attack in the future. Simpson v. United
States, 721 F.3d 875, 876 (7th Cir. 2013), see United States v. Harris, 741 F.3d 1245,
1250 (11th Cir. 2014) (explaining that Alleyne has not been made retroactive
through any combination of cases that necessarily dictate retroactivity under the
precedent of Tyler v. Cain, 533 U.S. 656, 666 (2001)). The Simpson court explained
that Alleyne was not before the Supreme Court on collateral review nor did the
Court declare that Alleyne’s new rule applied retroactively on collateral attack. 721
F.3d at 876. The Simpson court recognized that since 1) Alleyne was an extension of
Apprendi v. New Jersey, 530 U.S. 466 (2000) and 2) since the Supreme Court has
held that the rules based on Apprendi do not apply retroactively on collateral
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review, then the implication is that the Supreme Court will not declare Alleyne to be
retroactive. 721 F.3d at 876.
Although under Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001),
any district court, court of appeals, or the Supreme Court can render a decision that
a newly recognized right by the Supreme Court is retroactively applicable to cases
on collateral review for purposes of satisfying § 2255(f)(3), this Court has not found
any court that has done so. In fact, every Court of Appeals to consider the issue has
held that Alleyne’s rule does not have retroactive application. Simpson, 721 F.3d
875 (7th Cir.); Harris, 741 F.3d 1245 (11th Cir.); In re Payne, 733 F.3d 1027, 1030
(10th Cir. 2013); United States v. Redd, 735 F.3d 88, 91-92 (2d Cir. 2013); United
States v. Winkelman, No. 03-4500, 2014 WL 1228194 (3d Cir. Mar. 26, 2014). This
Court sees no reason to depart from those courts’ holdings. Therefore, Alleyne
cannot serve as a basis to apply § 2255(f)(3).
As for Descamps v. United States, 133 S. Ct. 2276 (June 20, 2013), in that
case the Supreme Court held that a California petitioner’s state law conviction for
burglary should not have counted as a violent offense under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). Id. at 2293. The Descamps court
made clear that the so-called “modified categorical” approach for determining when
a defendant’s prior conviction counts as one of ACCA’s enumerated predicate
offenses can only be used with criminal statutes that list multiple potential offense
elements in the alternative, such that it is not immediately clear which elements
“played a part in the defendant’s conviction.” Id. at 2283.
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Descamps, 133 S. Ct. 2276, just like Alleyne, 133 S. Ct. 2151, was before the
Supreme Court on direct review, not collateral review. Nor did the Supreme Court
announce in Descamps, or in any subsequent case for that matter, that its holding
was to apply retroactively on collateral review. Most importantly, Descamps did not
announce a new rule of law. “[A] case announces a new rule when it breaks new
ground or imposes a new obligation on the States or the Federal Government. To
put it differently, a case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became final.” Teague v.
Lane, 489 U.S. 288, 301 (1989) (citations omitted).
In the Descamps opinion, the Supreme Court repeatedly used language to
communicate that it was clarifying existing law and reaffirming clearly established
Supreme Court precedent over the approach of a single Circuit Court. E.g., 133 S.
Ct. at 2283 (“Our caselaw explaining the categorical approach and its ‘modified’
counterpart all but resolves this case.”), at 2285 (“Applied in that way—which is the
only way we have ever allowed—the modified approach merely helps implement the
categorical approach when a defendant was convicted of violating a divisible
statute.”), at 2288 (“[The Ninth Circuit’s ruling flouts our reasoning—here, by
extending judicial factfinding beyond the recognition of a prior conviction. Our
modified categorical approach merely assists the sentencing court in identifying the
defendant's crime of conviction, as we have held the Sixth Amendment permits. But
the Ninth Circuit’s reworking authorizes the court to try to discern what a trial
showed, or a plea proceeding revealed, about the defendant's underlying conduct.”).
It is clear then that Descamps did not announce a new rule, but rather reaffirmed
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existing Supreme Court precedent while rejecting the Ninth Circuit Court of
Appeal’s departure from established Supreme Court caselaw.2 Therefore, Descamps
cannot serve as a justification for the application of §2255(f)(3).
Pursuant to 28 U.S.C. § 2255 and Rule 4 of the Rules Governing Section 2255
Proceedings for the United States District Courts, the Court has considered the
grounds set forth in Petitioner’s motion, and finds the motion has no merit as it is
untimely, not subject to any exception to § 2255(f)’s statute of limitations and
therefore, must be dismissed.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United
States District Courts requires the district court to “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Accordingly, the
Court must determine whether to grant Petitioner a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2) even though Petitioner has not requested one.
According to 28 U.S.C. § 2253, a habeas petitioner will only be allowed to
appeal issues for which a certificate of appealability has been granted.” Sandoval v.
United States, 574 F.3d 847, 852 (7th Cir. 2009). A petitioner is entitled to a
certificate of appealability only if he can make a substantial showing of the denial of
Several other courts have also found that Descamps does not have
retroactive application. E.g., United States v. Davis, No. 13 C 50360, 2014 WL
1047760, at *5 (N.D. Ill. Mar. 18, 2014); Hunter v. United States, No. CIV-13-366RAW, 2014 WL 897019, at *2 (E.D. Okla. Mar. 6, 2014); Monroe v. United States,
3:13-CV-2546-G BK, 2013 WL 6199955, at *2-3 (N.D. Tex. Nov. 26, 2013); United
States v. Glover, No. 05-CR-0111, 2013 WL 4097915, at *3 (N.D. Okla. Aug. 13,
2013). This Court has not found any cases that considered the issue and have
concluded otherwise.
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a constitutional right. Id. (citing 28 U.S.C. § 2253(c)). Under this standard, a
petitioner must demonstrate that “reasonable jurists could debate whether the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For cases in which a district court denies a
habeas claim on procedural grounds, the habeas court should issue a certificate of
appealability only if the petitioner shows that (1) jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right, and (2) jurists of reason would find it debatable whether the district court was
correct in its procedural ruling. Id.
Consistent with the discussion above, the Court finds that no reasonable
jurists would differ on the Court’s treatment of Petitioner’s 2255 motion.
Petitioner’s 2255 motion is untimely, no exemptions to the applicable statute of
limitations apply, and the cases upon which Petitioner relies to support his claims
either do not apply retroactively or do not announce newly recognized rights.
Therefore, the Court declines to certify any issues for appeal pursuant to 28 U.S.C.
§ 2253(c)(2).3
CONCLUSION
For the reasons stated above, Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (“2255 motion”) (Doc. 1) is
When a district court denies a certificate of appealability, a petitioner may
not appeal the denial but should follow the procedures outlined in Federal Rule of
Appellate Procedure 22. Rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts.
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DISMISSED as untimely. No Certificate of Appealability shall issue from this
Court. IT IS SO ORDERED.
CASE TERMINATED.
Entered this 28th day of April, 2014.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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