Cannon v. United States of America

Filing 3

OPINION entered by Judge Sue E. Myerscough on 1/26/2015. The Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, d/e 1 is DISMISSED without prejudice for lack of jurisdiction. The Court declines to issue a certificate of appealability. The Court refers the Petitioner to Rule 22.2 of the Circuit Rules of the U S Court of Appeals for the Seventh Circuit for the procedure to request leave to file a second or successive § 2255 motion. (MAS, ilcd)

E-FILED

Thursday, 29 January, 2015 08:48:13 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
THOMAS L. CANNON,

)
)
Petitioner,
)
)
v.
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)
UNITED STATES OF AMERICA, )
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Respondent.
)

No. 15-cv-2023

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Petitioner Thomas L.
Cannon’s Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 (d/e 1). Under Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United States District
Courts, this Court must promptly examine the motion. If it appears
from the motion, any attached exhibits, and the record of prior
proceedings that Petitioner is not entitled to relief, the Court must
dismiss the motion. See Rules Governing Section 2255
Proceedings, 4(b). A preliminary review of Petitioner’s motion shows
that it must be dismissed because the § 2255 motion is a

successive motion and Petitioner did not obtain permission from the
Seventh Circuit to file a successive motion.
I. BACKGROUND
In December 2003, a jury found Petitioner guilty of possessing
cocaine with the intent to distribute. United States v. Cannon,
United States District Court, Central District of Illinois, Urbana
Division, Case No. 03-20085, d/e 16. The district judge, United
States District Judge Harold A. Baker, sentenced Petitioner to 20
years’ imprisonment. Id. at d/e 63.
Petitioner appealed, and the Government cross-appealed. In
November 2005, the United States Court of Appeals for the Seventh
Circuit affirmed the conviction, vacated the sentence, and
remanded the case with instructions to impose a sentence of life
imprisonment. United States v. Cannon, 429 F.3d 1158 (7th Cir.
2005) (finding Petitioner was subject to the mandatory minimum
sentence of life imprisonment because he distributed more than 50
grams of crack after two or more prior felony drug convictions
became final ).
On remand, Judge Baker recused himself, and the case was
reassigned to United States District Judge Michael P. McCuskey.
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United States v. Cannon, United States District Court, Central
District of Illinois, Urbana Division, Case No. 03-20085, d/e 95. In
March 2006, Judge McCuskey sentenced Petitioner to life
imprisonment. Id. at d/e 103.
In February 2007, Petitioner filed a Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255 alleging
ineffective assistance of counsel and challenging the
constitutionality of his mandatory minimum life sentence. Cannon
v. United States, United States District Court, Central District of
Illinois, Urbana Division, Case No. 07-2044, d/e 1 (First Motion). In
September 2008, following an evidentiary hearing, Judge McCuskey
denied the Motion. Id. at d/e 17. In November 2008, Judge
McCuskey granted a certificate of appealability. Id. at d/e 26.
Petitioner appealed, and, in May 2009, the Seventh Circuit
affirmed. Cannon v. United States, 326 F. App’x 393 (7th Cir. May
7, 2009) (unpublished disposition).
In July 2013, Petitioner filed a second Motion to Vacate, Set
Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Cannon
v. United States, United States District Court, Central District of
Illinois, Urbana Division, Case No. 13-2170, d/e 1 (Second Motion).
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This time, Petitioner challenged his sentence based on the United
States Supreme Court decision in Alleyne v. United States, 133 S.
Ct. 2151, 2155 (2013) (holding that “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt”).
Judge McCuskey determined that the Motion was a successive
motion pursuant to § 2255 and Petitioner had not obtained an
order from the Seventh Circuit Court of Appeals authorizing the
district court to consider the motion. Cannon v. United States,
Case No. 13-2170, d/e 3. Therefore, Judge McCuskey dismissed
the Motion for lack of jurisdiction and declined to issue a certificate
of appealability. Id.
In June 2014, Petitioner filed another Motion to Vacate, Set
Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. United
States v. Cannon, United States District Court, Central District of
Illinois, Urbana Division, Case No. 15-20231 (Third Motion). In his
Third Motion, Petitioner argues that the prior convictions used to
enhance his sentence are infirm in light of Descamps v. United
The Motion was originally filed in Case No. 13-2170. Following the
transfer of this case to this Court, the Court directed the Clerk to open a new
case. See Case No. 13-2170, Text Order dated January 22, 2015.
1

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States, 133 S. Ct. 2276 (2013) (holding that a court, when
determining whether a prior conviction is one of the crimes that
qualifies to increase a sentence, may not use the modified
categorical approach when the defendant was convicted under a
statute that does not contain alternative elements even if the
statute criminalizes conduct broader than the relevant generic
offense). Due to the retirement of Judge McCuskey, the case has
been reassigned to the undersigned judge.
II. ANALYSIS
A prisoner may not file a second or successive § 2255 motion
unless he obtains certification from the court of appeals. 28 U.S.C.
§ 2255(h). In fact, “[a] district court must dismiss a second or
successive petition, without awaiting any response from the
government, unless the court of appeals has given approval for its
filing.” Nunez v. United States, 96 F. 3d 990, 991 (7th Cir. 1996).
Petitioner’s Third Motion is a successive § 2255 motion.
Petitioner already received “one unencumbered opportunity to
receive a decision on the merits” when he filed, and the Court
denied, his First Motion in Case No. 07-2044. See, e.g., Potts v.
United States, 210 F. 3d 770, 770 (7th Cir. 2000) (explaining when
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a previous motion “was the ‘real thing’ that ought to subject the
petitioner” to the limitations the Antiterrorism and Effective Death
Penalty Act places on the filing of successive motions under
§ 2255). No exceptions to the certification requirement appear to
apply. See Suggs v. United States, 705 F. 3d 279, 282 (7th Cir.
2013) (noting that where a petitioner successfully challenged his
sentence pursuant to a § 2255 motion and was resentenced, his
second § 2255 motion challenging his resentencing did not
constitute a second or successive motion ); see also, e.g., Slack v.
McDaniel, 529 U.S. 473, 478 (2000) (a habeas petition filed after
the first petition was dismissed for failure to exhaust state remedies
is not a second or successive petition).
Petitioner has not obtained certification from the court of
appeals. Therefore, this Court lacks jurisdiction and the Third
Motion must be dismissed.
III. CERTIFICATE OF APPEALABILITY
If Petitioner seeks to appeal this decision, he must first obtain
a certificate of appealability. See 28 U.S.C. § 2253(c) (providing that
an appeal may not be taken to the court of appeals from a final
order in a § 2255 proceeding unless a circuit justice or judge issues
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a certificate of appealability); Sveum v. Smith, 403 F. 3d 447, 448
(7th Cir. 2005) (per curiam) (holding that a certificate of
appealability is required when the district court dismisses a motion
on the ground that it is an unauthorized, successive collateral
attack). A certificate of appealability may issue only if the petitioner
“has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). In addition, when a § 2255 motion is
denied on procedural grounds, a certificate of appealability should
issue only when the petitioner shows that reasonable jurists “would
find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
Petitioner has not made a substantial showing of the denial of
a constitutional right or that a reasonable jurist would find it
debatable whether the district court was correct in its procedural
ruling. Therefore, the Court denies a certificate of appealability.
IV. CONCLUSION
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 (d/e 1) is a successive motion that
the court of appeals has not granted him leave to file. Therefore,
the Court DISMISSES the Motion (d/e 1) without prejudice for lack
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of jurisdiction. The Court declines to issue a certificate of
appealability. The Court refers Petitioner to Rule 22.2 of the Circuit
Rules of the United States Court of Appeals for the Seventh Circuit
for the procedure to request leave to file a second or successive
§ 2255 motion.
ENTER: January 26, 2015
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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