Evans v. United States of America

Filing 5

ORDER AND OPINION entered by Judge Joe Billy McDade on 09/24/2015. IT IS THEREFORE ORDERED: 1. The Order dated September 9, 2015 3 and the Judgment dated September 10, 2015 4 are VACATED and Petitioner's case is REOPENED.2. The Clerk SHALL s erve a copy of the Motion 1 upon Respondent pursuant to Rule 3(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. 3. Respondent SHALL file an answer, motion, or other responsive pleading within fifty-six days after service of this Order. Respondent should address any facts which would establish whether Petitioner's claims are untimely or procedurally barred. In addition, Respondent should address the merits of Petitioner's constitutional claims and otherwise fully comply with Rule 5 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner MAY file a reply to Respondent's response within twenty-eight days of being served with the response. 5. Petitioner SHALL serve upon the United States Attorney's office a copy ofevery further pleading or other document submitted for consideration by the Court. See full written Order.(JS, ilcd)

E-FILED

Thursday, 24 September, 2015 10:08:49 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DAVID EVANS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 15-cv-1363

ORDER & OPINION
On September 9, 2015, this Court dismissed Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 3). Petitioner
has brought a claim pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015),
and argues that he is entitled to relief because he was improperly designated as an
armed career criminal at sentencing. The Court held that Petitioner’s claim was
non-cognizable under § 2255 because the Court calculated his Sentencing Guideline
range having found that he was an armed career criminal pursuant to the
Guidelines. Judgment was entered against Petitioner on September 10, 2015. (Doc.
4).
The Court sua sponte reconsiders its Order and vacates the Judgment. See
Fed. R. Civ. P. 59(e)(allowing a motion to alter or amend a judgment to be filed “no
later than 28 days after the entry of the judgment”); Moro v. Shell Oil Co., 91 F.3d
872, 876 (7th Cir. 1996)(explaining that Rule 59(e) “enables the court to correct its
own errors and thus avoid unnecessary appellate procedures.”). The Court based its

holding that Petitioner’s claims are non-cognizable on two recent Seventh Circuit
cases: Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013) and United States v.
Coleman, 763 F.3d 706 (7th Cir. 2014). The Coleman Court summarized the rule in
Hawkins, writing, “we held in Hawkins that the error in calculating the Guidelines
range did not constitute a miscarriage of justice for § 2255 purposes given the
advisory nature of the Guidelines and the district court’s determination that the
sentence was appropriate and that it did not exceed the statutory maximum.” 763
F.3d at 708-09. As explained below, the Court’s conclusion was erroneous based
upon the facts of this case.
Petitioner was convicted of violating 18 U.S.C. § 922(g). A person who
knowingly violates 18 U.S.C. § 922(g) can be sentenced to a maximum of ten years
imprisonment, 18 U.S.C. § 924(a)(2), unless he has “three previous convictions by
any court referred to in section 922(g)(1) . . . for a violent felony or a serious drug
offense, or both . . . .” 18 U.S.C. § 924(e)(1). In such case, he is subject to a fifteen
year mandatory minimum sentence. See id.
The Court sentenced Petitioner to 210 months of imprisonment, which
exceeds the maximum sentence allowable for individuals who are not armed career
criminals. See 18 U.S.C. § 924(a)(2). Because the sentence that the Court imposed is
greater than the maximum allowed by statute for non-armed career criminals, the
holdings of Hawkins and Coleman do not apply. See Coleman, 736 F.3d at 708-09.
Prisoners may challenge sentences that are in excess of the maximum authorized by
law. See 28 U.S.C. § 2555(a).

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On reconsideration, 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 cannot find that Petitioner’s claim is without merit. Therefore, Respondent is
ordered to respond to the Motion.
IT IS THEREFORE ORDERED:
1.

The Order dated September 9, 2015 (Doc. 3) and the Judgment dated

September 10, 2015 (Doc. 4) are VACATED and Petitioner’s case is REOPENED.
2.

The Clerk SHALL serve a copy of the Motion (Doc. 1) upon Respondent

pursuant to Rule 3(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts.
3.

Respondent SHALL file an answer, motion, or other responsive pleading

within fifty-six days after service of this Order. Respondent should address any
facts which would establish whether Petitioner’s claims are untimely or
procedurally barred. In addition, Respondent should address the merits of
Petitioner’s constitutional claims and otherwise fully comply with Rule 5 of the
Rules Governing Section 2255 Proceedings for the United States District Courts.
4.

Petitioner MAY file a reply to Respondent’s response within twenty-eight

days of being served with the response.
5.

Petitioner SHALL serve upon the United States Attorney’s office a copy of

every further pleading or other document submitted for consideration by the Court.

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Entered this 24th day of September, 2015.

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

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