Harr v. United States of America
Filing
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ORDER AND OPINION Entered by Judge Joe Billy McDade on 4/28/14. For the reasons stated above, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("2255 motion") 1 is DISMISSED as untimely. No Certificate of Appealability shall issue from this Court. IT IS SO ORDERED. (cc: petitioner)(SW, ilcd)
E-FILED
Monday, 28 April, 2014 04:21:45 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
RICHARD E. HARR
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 14-cv-1152
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). In
2006, Petitioner was convicted of conspiracy to manufacture methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) upon a plea of guilty. (Judgment,
United States v. Harr, No. 05-cr-10041 (C.D. Ill. 2006), Doc. 91). He was originally
sentenced to a term of 240 months’ imprisonment. (Id.). However, this sentence was
later reduced to 160 months upon the Government’s Rule 35 motion. (May 15, 2009
Minute Entry, Doc. 120, No. 05-cr-10041).
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
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 to satisfy the Sixth
Amendment of the United States Constitution. (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. (Id. at
5). These grounds are without merit.
Petitioner’s first and unavoidable impediment is that his petition 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—
(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;
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(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, so his 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 August
4, 2006. (No. 05-cr-10041, Doc. 91). Petitioner had ten days thereafter to file a notice
of appeal. Fed. R. App. P. 4(b) (2005). Therefore, Petitioner’s conviction became final
on August 14, 2006, when his time to file a notice of appeal expired. Under
§ 2255(f), Petitioner had until August 14, 2007, to file his § 2255 motion.1
The Court is aware that Petitioner was resentenced in May 2009 because of
the Court’s grant of a Government motion brought under Federal Rule of Criminal
Procedure 35. Petitioner was resentenced and Amended Judgment was entered on
May 15, 2009. (No. 05-cr-10041, Doc. 120), which means the deadline to file a notice
of appeal would have been May 29, 2009 and the one year time period to file his
§2255 motion would have expired on June 1, 2010, the first day not a Saturday,
Sunday or legal holiday. Petitioner did not file his motion until April 21, 2014.
Therefore, in this particular case, accepting the later start date would still result in
Petitioner’s motion being time-barred, so there is no need for the Court to belabor
the point any further. Moreover, other district courts in this judicial circuit and
Courts of Appeals from other judicial circuits have 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).
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Undoubtedly, Petitioner thinks that 28 U.S.C. § 2255(f)(3) applies to his 2255
motion, but it does not. Section 2255(f)(3) permits the one year statute of limitation
period 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. Although both the cases upon which Petitioner relies were decided
less than one year ago, in June 2013, neither case contains rules or newly
recognized rights that have been made retroactively applicable to cases on collateral
review by the Supreme Court or any lesser federal courts.
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 superior 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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