Short v. United States of America

Filing 13

ORDER entered by Judge Sara Darrow on June 5, 2017. Short's 1 Motion to Vacate, Set Aside, or Correct Sentence (2255) and his 9 Motion to Request Counsel are DENIED. Short's 7 Motion for Leave to Proceed In Forma Pauperis is MOOT. (RS1, ilcd)

E-FILED

Monday, 05 June, 2017 04:29:56 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
CLINTON J. SHORT,
Petitioner,
v.
Case No. 2:16-cv-02342-SLD
UNITED STATES OF AMERICA
Respondent.
ORDER
Before the Court is Petitioner Clinton Short’s Motion to Vacate, Set Aside, or Correct
Sentence, ECF No. 1, his Motion for Leave to Proceed In Forma Pauperis, ECF No. 7, and his
Motion to Request Counsel, ECF No. 9. For the following reasons, the Motion to Vacate, Set
Aside, or Correct Sentence and the Motion to Request Counsel, ECF No. 9, are DENIED.
Short’s Motion for Leave to Proceed In Forma Pauperis, ECF No. 7, is MOOT.
BACKGROUND
Short entered an open guilty plea to possession of a firearm by a felon, 18 U.S.C. §§
922(g) and 924(a)(2), on January 13, 2010.1 The Presentence Investigation Report (“PSR”)
placed his total offense level, including enhancements and downward adjustments, at 25, and his
criminal history in category VI, PSR ¶ 79, Cr. ECF No. 17, putting the guideline range for his
offense at 110 to 120 months. On May 10, 2010, the trial court sentenced Short to 120 months of
incarceration. Judgment, Cr. ECF No. 19. Short did not appeal his conviction or sentence. See
Mot. Vacate, Set Aside, or Correct Sentence 3, ECF No. 1. He filed the present § 2255 petition
on October 31, 2016.
1

Citations to docket entries in Short’s § 2255 proceeding will take the form: “ECF No. __.” Citations to docket
entries in Short’s underlying criminal matter, United States v. Short, No. 2:09-cr-20041-MPM-DGB-1, take the form
“Cr. [ECF No. __.]”

Short argues, as basis for his motion, that (1) he is actually innocent, (2) the United States
breached a plea agreement with him and (3) his counsel failed to file an appeal on his behalf. Id.
at 6–7. The United States (“the Government”) argues that Short’s motion is procedurally barred
due to untimeliness, and that his claims are not otherwise sufficient to merit relief. Gov’t Resp.
2, ECF No. 11.
DISCUSSION
I.

Short’s Request to Appoint Counsel

Although Short has no absolute right to counsel in his civil case, he asks the Court to
exercise its discretion to appoint counsel for him. See Merritt v. Faulkner, 697 F.2d 761, 763
(7th Cir. 1983). After considering the factors set forth in Merrit, the Court concludes that
appointment of counsel is not warranted in this action at this time. Short provides the Court with
what he claims is proof of his attempts to retain private counsel (an unpostmarked letter to
several different pro bono attorneys), Mot. Request Counsel Ex. 1 at 2, ECF No. 9-1, but he does
not allege any physical or mental disability which might preclude him from adequately
investigating the facts giving rise to his Motion. Merritt, 697 F.2d at 765. Furthermore, Short
acknowledges that he “understand[s] [the] issues” in his case, and there is nothing before the
Court to suggest that he is not capable of adequately presenting his case. Mot. Request Counsel
Ex. 1 at 1. The legal issues raised are not unduly complex, and there is an abundance of
accessible case law. Accordingly, Short’s Motion to Request Counsel is denied.
II.

Timeliness of Petition

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the
procedure by which a federal prisoner may file a collateral motion challenging his criminal
sentence. 28 U.S.C. § 2255(a). 28 U.S.C. § 2255 permits a prisoner incarcerated pursuant to an
Act of Congress to seek that his sentence be vacated, set aside, or corrected if “the sentence was

imposed in violation of the Constitution or laws of the United States, or . . . the court was
without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack[.]” Id. AEDPA established a one
year time period in which a federal prisoner may file a federal habeas petition, running 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;
(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.
28 U.S.C. § 2255(f).
Short does not argue that an intervening change in the law or newly recognized right
supports his claim. Nor does he argue that the Government created an impediment to his
initiation of a timely motion, or that new facts support a claim for relief. This means the one
year statute of limitations began to run when the judgment against Short became final. 28 U.S.C.
§ 2255(f)(4). After his sentencing occurred and judgment was entered on May 10, 2010, Short
had fourteen days to appeal, at which time the judgment of his conviction became final. See
Davis v. United States, 817 F.3d 319, 327 (7th Cir. 2016). Short filed the present motion on
October 31, 2016, more than five years after his limitations period ended. Short’s habeas corpus
petition is untimely, and therefore his claims of ineffective assistance of counsel and those
regarding his plea and sentencing are not cognizable in a §2255 petition. In any event, the
claims do not have merit: Short pled open to his offense, Sentencing Hrg. Tr. 29:22–23, ECF No.

1-2, so there was no agreement in place for the Government to breach. Short registered no
objections to the PSR or guideline calculation at the sentencing hearing, id. at 5:3–6:6, and the
Court does not identify any errors in the guideline calculation. For instance, Short claims that he
was not provided the acceptance of responsibility reduction, but this is clearly rebuked by the
PSR. PSR ¶ 28.
III.

Actual Innocence

Short also claims that he is actually innocent, not of the underlying offense, but of the
sentence he received: he claims that his guideline range was calculated incorrectly. Mot. Vacate
4. The claim is not tenable. A claim of actual innocence may provide a petitioner with the basis
for an equitable exception to AEDPA’s procedural bars, serving as an escape valve to protect
from constitutional errors that “‘result in the incarceration of innocent persons.’” McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931–32 (2013) (quoting Herrera v. Collins, 506 U.S. 390, 404
(1993)). Therefore, “actual innocence” refers to factual innocence of the underlying offense: to
sufficiently make out a claim, “a petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence.” Id. at 1935. The
standard is “demanding and permits review only in the ‘extraordinary’ case.” House v. Bell, 547
U.S. 518, 538 (2006).
Short presents no new evidence and makes no arguments challenging the validity of his
underlying conviction. His chief complaint is that the sentencing court misapplied the sentencing
guidelines, particularly via what he alleges was a failure to apply a reduction for his acceptance
of responsibility. Mot. Vacate 4. An actual innocence claim is not the proper vehicle for such an
argument, which was disposed of already in this order, supra Sec. I. Because he has not
presented any new factual information that would call into question a jury’s conviction, or in any

way implicate his actual innocence, such that his continued imprisonment would be
unconstitutional, Short does not overcome the statutory time bar.
CONCLUSION
Short’s Motion to Vacate, Set Aside, or Correct Sentence, ECF No. 1, and his Motion to
Request Counsel, ECF No. 9, are DENIED. Short’s Motion for Leave to Proceed In Forma
Pauperis, ECF No. 7, is MOOT.
Entered June 5, 2017.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE