Ford v. United States of America

Filing 6

OPINION entered by Judge Michael P. McCuskey on 6/21/2012. Petitioner's Motion to Vacate, Set Aside or Correct Sentence 1 is DISMISSED. A certificate of appealabilty is DENIED. This case is terminated. See written order. Copy mailed to Darryle T Ford, BUTNER MEDIUM II, Federal Correctional Institution, P O Box 1500, Butner, NC 27509. (JMW, ilcd)

E-FILED

Thursday, 21 June, 2012 04:52:36 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
DARRYLE T. FORD,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 12-CV-2090

OPINION

On March 16, 2012, Petitioner, Darryle T. Ford, filed a pro se Motion to Vacate, Set
Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1). On April 16, 2012, the
Government filed a Response (#4), arguing that Petitioner’s Motion was filed beyond the
one-year time limitation of 28 U.S.C. § 2255 and should be denied. On April 30, 2012, the
Petitioner filed a Reply (#5). In response to the Government’s argument that his Motion is
untimely, Petitioner argues, albeit unclearly, that, among other things, he could not have
raised his arguments prior to the decision of the United States Supreme Court in CarachuriRosendo v. Holder, 130 S. Ct. 2577 (2010). This court has carefully reviewed the parties’
arguments and supporting documents. Following this careful and thorough review, this court
agrees that Petitioner’s pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28
U.S.C. § 2255 (#1) is untimely and therefore must be DISMISSED.
FACTS
In Case No. 08-CR-20056, Petitioner was charged by indictment with one count of
distribution of five grams or more of cocaine base (“crack”), in violation of 21 U.S.C. §

841(a)(1) and 21 U.S.C. § 841(b)(1)(B). On February 6, 2009, the Government filed a
Notice of Prior Conviction pursuant to 21 U.S.C. § 851 stating that Petitioner had a prior
felony conviction for possession of a controlled substance under Illinois state law in Case
No. 03-CR-115120. The Government alleged that the Illinois conviction constituted a
predicate “felony drug” conviction that triggered a ten-year statutory minimum sentence set
forth in 21 U.S.C. § 841(b)(1)(B). On February 23, 2009, Petitioner entered a guilty plea
pursuant to a written plea agreement in accordance to Rule 11(c)(1)(B) of the Federal Rules
of Criminal Procedure. In that agreement, Petitioner agreed to cooperate with authorities, to
pay a mandatory special assessment fee of $100 and to waive his rights to challenge or appeal
his conviction and sentence according to 18 U.S.C. § 3742, 28 U.S.C. § 1291 and 28 U.S.C.
§ 2255. On September 1, 2009, Petitioner was sentenced to 120 months. The Petitioner did
not appeal.
ANALYSIS
“A motion by a federal prisoner for postconviction relief under 28 U.S.C. § 2255 is
subject to a one-year time limitation that generally runs from ‘the date on which the judgment
of conviction becomes final.’” Clay v. United States, 537 U.S. 522, 524 (2003) (quoting 28
U.S.C. § 2255(f)(1)). In this case, the judgment was entered on September 1, 2009. Since
the Petitioner did not appeal, the judgment became final on that date. Therefore, Petitioner
had one year, or until September 1, 2010, to file his motion. See United States v. Marcello,
212 F.3d 1005, 1010 (7th Cir. 2000) (adopting the anniversary rule for determining the date §
2255 motion was due). Petitioner did not file his Motion until March 12, 2012, more than
one year later.

In response to the Government’s argument that his Motion is untimely, Petitioner
presented several arguments explaining why his motion is timely. Petitioner argued that his
motion is timely because of the Carachuri decision. Though Petitioner’s argument is difficult
to follow, this court believes that he is arguing that his Motion is timely based upon §
2255(f)(3). Under this subsection, the one-year limitations period runs from “the date on
which the right asserted was initially recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). This court
concludes that § 2255(f)(3) does not apply in this case.
In Carachuri, the defendant faced deportation under the Immigration Nationality Act
after he committed two misdemeanor drug possession offenses in violation of Texas law.
Carachuri, 130 S. Ct. at 2580. For the first offense, the defendant received a 20-day sentence
for possessing less than two ounces of marijuana in violation of Texas law. Id. at 2583. For
the second offense, defendant received a 10-day sentence for possessing a Xanax tablet
without prescription, also in violation of Texas law. Id. After his second offense, the
Government initiated removal proceedings against him. The defendant argued that he was
eligible for cancellation of removal under 8 U.S.C. § 1229b(a). Under that provision, the
Attorney General may cancel an order for removal as long as the noncitizen “has not been
convicted of a[n] aggravated felony.” Id. (citing § 1229b(a)(3)).
Under the Immigration and Nationality Act, a person convicted of an aggravated
felony cannot seek cancellation of removal. See 8 U.S.C. § 1229b(a). The Government
argued that the 2005 Texas conviction constituted an “aggravated felony” conviction under
the Immigration Nationality Act. Id. at 2582. According to the Government, if defendant

was prosecuted under 21 U.S.C. § 844(a), he would have faced up to a two-year sentence as
long as he had a “prior conviction for any drug . . . offense chargeable under the law of any
State . . . has become final.” Id. (citing 21 U.S.C. § 844(a)). According to the Government,
if he was prosecuted under federal law, his 2004 offense would serve as a prior drug
conviction and he could have received a two-year sentence. Id. Accordingly, defendant’s
2005 conviction would be an aggravated felony because it would be “punishable” by
imprisonment for more than one year, even though he only received a ten-day sentence. Id.
at 2587. The Fifth Circuit Court of Appeals accepted the Government’s position noting that
any conduct that hypothetically could have been prosecuted as a felony under the Controlled
Substances Act would qualify as an aggravated felony. Id. at 2584. On June 14, 2010, the
Supreme Court reversed the Fifth Circuit’s decision determining that it would be
“counterintuitive” and “unorthodox” to apply an “aggravated felony” label to petitioner’s tenday sentence. Id. at 2579. The Court rejected the Government’s argument that conduct that
is “punishable as a felony” should be treated as the equivalent of a felony conviction if the
underlying conduct could have been a felony under federal law. Id. Accordingly, the Court
determined that the conviction itself is the starting place, not what could have been charged.
Id.
This court concludes that Petitioner does not have a legitimate argument based on
Carachuri. Under 21 U.S.C. § 841(b)(1)(B), “[i]f any person commits such a violation after a
prior conviction for a felony drug offense has become final, such a person shall be sentenced
to a term of imprisonment which may not be less than 10 years . . . .” 21 U.S.C. §
841(b)(1)(B). A separate provision defines a felony drug offense as “an offense that is

punishable by imprisonment for more than one year under any law of the United States or of
a State or foreign country that prohibits or restricts conduct relating to narcotic drugs,
marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44).
Petitioner is arguing that this court improperly enhanced his minimum sentence pursuant to
21 U.S.C. § 841(b)(1)(B). According to the Petitioner, his prior felony does not constitute a
felony drug offense that would qualify for sentence enhancement because he only served a
one-year sentence. Unlike the defendant in Carachuri whose previous conviction did not
constitute a felony drug offense, the Petitioner in this case does have a previous felony drug
offense. See Carachuri, 130 S. Ct. at 2586. In this case, Petitioner was previously convicted
of a Class 4 felony for possession of controlled substance, which is punishable by up to 3
years of imprisonment. 720 ILCS 570/402(c); 730 ILCS 5/5-4.5-45(a). The fact that he was
only given a one-year sentence is irrelevant because the felony itself falls squarely within the
definition of the statute. See United States v. Jackson, 419 F. App’x 666, 672 (7th Cir. 2011)
(citing Burgess v. United States, 553 U.S. 124, 129- 33 (2008)).
Petitioner also mentions “tolling” in his Reply. Equitable tolling excuses an untimely
filing when “[e]xtraordinary circumstances far beyond the litigant’s control . . . prevented
timely filing.” Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003) (quoting United States
v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). “ [T]he equitable tolling of a statute of
limitations is an extraordinary remedy reserved for truly exceptional situations.” Nolan v.
United States, 358 F.3d 480, 486 (7th Cir. 2004). This court believes that Petitioner has not
developed this argument, either in his pro se Motion (#1) or in his Reply (#5), and has not
established that extraordinary circumstances existed here. Therefore, this court concludes

that Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255
(#1) is untimely and must be dismissed.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, this court denies a
certificate of appealability in this case. “When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying constitutional claim,” which
has happened here, a certificate of appealability should issue only when the prisoner shows
both “that jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (emphasis added); see also Jimenez v. Quarterman, 129 S. Ct. 681, 684 n.3 (2009).
This court concludes that jurists of reason would not find it debatable whether this court
correctly found that the Motion is untimely.
IT IS THEREFORE ORDERED THAT:
(1) Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §
2255 (#1) is DISMISSED.
(2) A certificate of appealability is DENIED.
(3) This case is terminated.
ENTERED this 21st day of June, 2012
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
U.S. DISTRICT JUDGE