White v. United States of America

Filing 14

OPINION entered by Judge Michael P. McCuskey on 9/20/2013. The government's Motion to Dismiss 10 is GRANTED. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 1 is DISMISSED with prejudice for lack of jurisdiction. Petitioner's request for a Certificate of Appealability is DENIED. This case is terminated. See written opinion. (Copy mailed to petitioner at FCI Greenville.) (KMR, ilcd)

E-FILED

Friday, 20 September, 2013 09:31:58 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION

JUAN M. WHITE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 13-CV-2070

OPINION

Petitioner, Juan M. White, filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant
to 28 U.S.C. § 2255 (#1) on March 26, 2013. The government filed a Motion to Dismiss (#10) on
June 5, 2013. Petitioner filed his Response (#12) to the Motion to Dismiss on June 17, 2013. For
the following reasons, the government’s Motion to Dismiss (#10) is GRANTED and Petitioner’s
Petition (#1) is dismissed for lack of jurisdiction.
BACKGROUND
Petitioner was convicted following a jury trial of distribution of 50 or more grams of crack
cocaine in violation of 21 U.S.C. § 841(a)(1), in Case No. 03-CR-20092. On November 29, 2006,
Petitioner was sentenced to 360 months in the Bureau of Prisons. On March 5, 2008, the Seventh
Circuit Court of Appeals affirmed Petitioner’s conviction and sentence. United States v. White, 519
F.3d 342 (7th Cir. 2008). Petitioner filed a first petition to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 on August 3, 2009 (Case No. 09-CV-2184). On December 4, 2009,
this court issued an Opinion denying Petitioner’s first § 2255 petition. This court denied a certificate

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of appealability on February 3, 2010. On August 23, 2010, the Seventh Circuit denied Petitioner’s
request for a certificate of appealability.
On April 16, 2012, Petitioner filed a pro se motion for retroactive application of the
sentencing guidelines to crack cocaine offense in his criminal case. This court appointed the federal
defender and on May 11, 2012, the federal defender, in agreement with the government, filed an
“Amended Motion to Reduce Sentence.” The amended motion was made pursuant to 18 U.S.C. §
3582(c)(2). The motion noted that under retroactive amendment 750 to the United States Sentencing
Guidelines Petitioner’s base offense level should be recalculated from 38 to 36, resulting in a lower
total offense level of 39 (instead of the original 41). Combined with a criminal history category of
II, Petitioner’s guideline range was recalculated as 292 to 365 months. The motion requested “that
this Honorable Court GRANT the Defendant’s motion to reduce sentence and enter an Amended
Judgment and Conviction sentencing the Defendant to 292 months’ imprisonment ...” On June 21,
2012, this court, without a hearing, entered a short form order that stated the following:
“Upon motion of [the defendant] under 18 U.S.C. § 3582(c)(2) for a reduction
in the term of imprisonment imposed based on a guideline sentencing range that has
subsequently been lowered and made retroactive by the United States Sentencing
Commission pursuant to 28 U.S.C. § 994(u), and having considered such motion, and
taking into account the policy statement set forth at USSG § 1B1.10 and the
sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent they are applicable,
IT IS ORDERED that the motion is:
GRANTED and the defendant’s previously imposed sentence of
imprisonment (as reflected in the last judgment issued) of 360 months is reduced to
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292 months[].
***
Except as otherwise provided, all provisions of the judgment dated 12/1/06
shall remain in effect.
IT IS SO ORDERED.”
Petitioner filed the instant petition on March 26, 2013. In the petition, he argues that this
court improperly found that he had, in the drug offense for which he was convicted, a
“manager/supervisor” role under the Sentencing Guidelines, which earned him an enhanced
sentence. He further argues that his sentence should be reduced due to acceptance of responsibility
and his completion of several institutional programs in the Bureau of Prisons. Petitioner also notes
that he has not received any disciplinary infractions since being sentenced. The government’s
motion to dismiss argues that this is a successive § 2255 petition filed without permission from the
Seventh Circuit and thus should be denied. The government contends that Petitioner’s claims do not
arise from his June 2012 sentence modification. Rather, the government argues that the claims relate
to the 2006 sentencing and were known to Petitioner at that time and could have been raised in his
direct appeal or initial § 2255 petition. Thus, the government argues this court is without jurisdiction
to entertain the successive § 2255 petition without permission from the Seventh Circuit and,
additionally, that the petition is untimely. Petitioner, in his response, argues that the government is
misconstruing his petition, and that the claims relate to the June 2012 sentence because the modified
sentence still contains the “manager/supervisor” enhancement, and thus the argument against the
enhancement is necessarily embedded in that sentence.
ANALYSIS
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Seventh Circuit Case Law on Second or Successive Habeas Petitions
“Section 2255 gives a federal prisoner one opportunity to challenge a
conviction and sentence following a direct appeal. See 28 U.S.C. § 2255(a), (h). If
a prisoner seeks to challenge his conviction or sentence a second time, he must
persuade a court of appeals to certify the motion and authorize the district court to
hear it. See 28 U.S.C. §§ 2244(a)-(b), 2255(h). The court of appeals may authorize
a second or successive motion only if it presents either (1) newly discovered evidence
that makes a clear and convincing showing of innocence or (2) a new rule of
constitutional law made retroactive by the Supreme Court. 28 U.S.C. § 2255(h).
Without authorization from the court of appeals, the district court has no jurisdiction
to hear the petition. [citation omitted]” Suggs v. United States, 705 F.3d 279, 281-82
(7th Cir. 2013).
The Seventh Circuit has noted that not all subsequent motions “are ‘second or successive’
within the meaning of the statutes, for the phrase is a term of art in the technical world of habeas
procedure.” Suggs, 705 F.3d at 282. Pertinent to the arguments advanced by the parties in the
instant case, the Seventh Circuit has “held that such motions after resentencing are not second or
successive when they allege errors made during the resentencing, but they are second or successive
when they challenge the underlying conviction.” Suggs, 705 F.3d at 282, citing Dahler v. United
States, 259 F.3d 763 (7th Cir. 2001). This holding, however, has been called into question by the
Supreme Court’s decision in Magwood v. Patterson, 130 S.Ct. 2788 (2010). In Magwood, the Court
held that, where a state prisoner pursuant to 28 U.S.C. § 2254 successfully challenged his sentence,
he could file a second § 2254 petition challenging an alleged error at the resentencing, even if the
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alleged error occurred at the original sentencing as well. Magwood, 130 S.Ct. at 2801. The Supreme
Court rejected the state’s argument that the prisoner’s claim was not “new” because the trial court
made the same mistake at the original sentencing, holding “[a]n error made a second time is still a
new error. That is especially clear here, where the state court conducted a full resentencing and
reviewed the aggravating evidence afresh.” Magwood, 130 S.Ct. at 2801. In analyzing Magwood,
the Seventh Circuit concluded the Supreme Court “left open the question of whether a motion
following a resentencing is ‘second or successive’ where it challenges the underlying conviction, not
the resentencing.” Suggs, 705 F.3d at 284. Thus, because the Court left that question open, the
Seventh Circuit felt bound to follow the precedent established in Dahler, and continues to hold that,
where a petitioner does not claim that any errors, new or repeated, occurred in the resentencing, and
only claims errors made in the underlying conviction, such a petition is a second or successive
petition. Suggs, 705 F.3d at 284-85.
Whether Petitioner’s Petition is Second or Successive
The arguments of the parties center on whether Petitioner’s claim is “new” and rising out
of the June 2012 sentence, or whether Petitioner’s claim could have been raised when sentence was
imposed in 2006. However, before the court can analyze these arguments under either Suggs or
Magwood, the court must first determine whether there has even been a “resentencing” or
“intervening judgment” so that those cases would apply.
In both Suggs and Magwood, the prisoner petitioners successfully challenged their
judgments under the habeas statutes.1 Suggs, 705 F.3d at 281; Magwood, 130 S.Ct. at 2793. In
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Suggs involved a § 2255 petition of a prisoner in federal custody pursuant to a federal
judgment, whereas Magwood involved a § 2254 petition of a prisoner in custody pursuant to a
state court judgment. However, the bar on successive challenges under § 2254 is parallel to the
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Suggs, the petitioner successfully alleged in his initial § 2255 petition that he received ineffective
assistance of counsel regarding his sentencing guideline calculations. Suggs, 705 F.3d at 281. In
Magwood, the petitioner successfully alleged that his sentence was unconstitutional because the trial
court failed to find statutory mitigating circumstances relating to his mental state. Magwood, 130
S.Ct. at 2793. He received a new, full sentencing hearing. Magwood, 130 S.Ct. at 2793. The Court
was careful to note that there had been an “intervening judgment” and that the subsequent § 2254
petition, the one challenging error at the resentencing, was the petitioner’s “first application
challenging that intervening judgment.” Magwood, 130 S.Ct. at 2801 (emphasis in original). In
analyzing Magwood, both the majority and dissent in Suggs made clear that the Magwood holding
applied only to cases in which there had been a “new” or “intervening” judgment following a
successful initial habeas petition. Suggs, 705 F.3d at 284 (“Treating the petitioner’s resentencing
as a new, intervening, judgment, the Court held that his new petition challenged the intervening
judgment and therefore was not ‘second or successive.”); Suggs, 705 F.3d at 285 (Sykes, J.,
dissenting) (“Magwood held that a second-in-time habeas petition under 28 U.S.C. § 2254 is not
‘second or successive’ under 28 U.S.C. § 2244(b) if it challenges a new judgment entered after a
successful § 2254 petition.”).
Here, however, Petitioner’s initial § 2255 petition was unsuccessful. White v. United States,
No. 09-CV-2184, 2009 WL 4730486 (C.D. Ill. Dec. 4, 2009) (opinion denying initial § 2255
petition); White v. United States, No. 10-1273 (7th Cir. July 12, 2010) (Seventh Circuit mandate
denying Petitioner a certificate of appealability for his initial § 2255 petition). Rather, Petitioner’s

bar under § 2255, and the court therefore applies analysis and reasoning based on § 2254's
treatment of second or successive petitions to § 2255. Suggs, 705 F.3d at 283, n.1.
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sentence was reduced pursuant to 18 U.S.C. § 3582(c)(2) following an amendment to the sentencing
guidelines by the Sentencing Commission that was made retroactive. The motion was unopposed
by the government and disposed of with a short, one page order reducing Petitioner’s sentence that
was careful to note that “[e]xcept as otherwise provided, all provisions of the judgment dated 12/1/06
shall remain in effect.” Petitioner did not receive a sentence reduction due to a successful habeas
petition.
The court must now determine whether a sentence reduction under § 3582(c)(2) qualifies as
a “new” or “intervening” judgment under Magwood and Suggs. Motions under § 3582(c)(2) are very
limited and specific. “Section 3582(c)(2) permits a district court to reduce the term of imprisonment
for a defendant ‘who has been sentenced to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commission’ so long as ‘such a reduction is
consistent with the applicable policy statements issued by the Sentencing Commission.’” United
States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009). In reducing a sentence under § 3582(c)(2), the
district court has to recalculate the sentence based on the amended guidelines, but, in doing so, all
original sentencing determinations remain unchanged with the sole exception of the guideline range
that has been amended since the original sentencing. Webb, 565 F.3d at 793. The court then has the
discretion, in light of the factors in 18 U.S.C. § 3553(a), to choose whether to impose the newly
calculated sentence or to keep the original sentence. Webb, 565 F.3d at 793. In contrast, a habeas
petition under § 2254 or § 2255 is a challenge to a judgment arguing that the sentence was imposed
in violation of the U.S. Constitution or federal law, or that the court was without jurisdiction to
impose such a 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). Motions under § 2255 and § 3582(c)(2)
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are not the same. See United States v. Purnell, No. 11-3737, 481 Fed. Appx. 262, 2012 WL
4378267 (7th Cir. Sept. 26, 2012) (“Although Purnell labeled his filing as a request for a sentence
reduction under § 3582(c)(2), his motion is not related to any retroactive amendment of the
sentencing guidelines, which is a predicate for bringing the motion. [citation omitted] Rather his
motion attacks his original sentence, advancing claims that are substantively within the scope of §
2255.”). A sentence reduction under § 3582(c)(2) is not a “new” or “intervening” judgment pursuant
to a successful habeas petition and Magwood does not apply to the instant case. See Desper v.
United States, 2010 WL 5058674, *1, n.2 (S.D. W.Va. Dec. 6, 2010) (“The court does not treat the
March 11, 2008, order reducing petitioner’s sentence pursuant to 18 U.S.C. § 3582(c)(2) as the entry
of a new judgment that might warrant a departure from the rule barring successive section 2255
motions. The order merely reduced by two points petitioner’s total offense level in accordance with
an amendment to the United States Sentencing Guidelines.”).
Petitioner’s sentence was reduced pursuant to § 3582(c)(2). It was not reduced pursuant to
a successful habeas petition. The June 2012 reduction of sentence did not constitute a new or
intervening judgment. Petitioner’s initial § 2255 was denied by this court in 2009. Thus,
Petitioner’s current Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255
(#1) is a second or successive motion under § 2255 filed without the prior certification of the
Seventh Circuit Court of Appeals and must be dismissed for lack of jurisdiction. 28 U.S.C. §
2255(h).
CERTIFICATE OF APPEALABILITY
In Slack v. McDaniel, the United States Supreme Court held that “when the district court
denies a habeas petition on procedural grounds without reaching the prisoner’s underlying
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constitutional claim, a COA should issue when the prisoner shows, at least, 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). “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could
not conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id.
Here, it is clear that Petitioner’s habeas petition was filed as a second or successive habeas
petition under § 2255 without prior certification by the court of appeals. The fact that the petition
was a second or successive petition would not allow any reasonable jurist to conclude that the court
has erred in dismissing the petition because it has no jurisdiction to entertain the case. Therefore,
a certificate of appealability is denied.
IT IS THEREFORE ORDERED THAT:
(1) The government’s Motion to Dismiss (#10) is GRANTED.
(2) Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §
2255 (#1) is DISMISSED with prejudice for lack of jurisdiction.
(3) Petitioner’s request for a Certificate of Appealability is DENIED.
(4) This case is terminated.
ENTERED this 20th day of September, 2013
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
U.S. DISTRICT JUDGE

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