Gulley v. United States of America
Filing
3
OPINION Entered by Judge Sue E. Myerscough on 06/05/2017. SEE WRITTEN OPINION. Because it plainly appears from the Motion and the record of the prior proceedings that Petitioner is not entitled to relief, the Motion Under 28 U.S.C. § 2255 to V acate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1 ) is SUMMARILY DISMISSED. The Clerk is DIRECTED to notify Petitioner of the dismissal. The Court also denies a certificate of appealability. THIS CASE IS CLOSED. (DM, ilcd)
E-FILED
Tuesday, 06 June, 2017 04:55:43 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PARNELL GULLEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 17-2122
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on Petitioner Parnell Gulley’s
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (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 Petitioner is not entitled to relief.
I. BACKGROUND
In February 2011, a jury found Petitioner guilty of
distribution of five or more grams of cocaine base (“crack”). See
United States v. Gulley, Central District of Illinois, Urbana
Division, Case No. 08-20057 (“Crim. Case”) (d/e 65). The
sentencing hearing was held in October 2011. Crim. Case,
October 24, 2011 Minute Entry.
At sentencing, United States District Judge Michael P.
McCuskey determined that Petitioner qualified as a career offender
based on two prior convictions: (1) possession of cannabis with
intent to deliver, Cook County, Illinois, Case No. 99-CR-1372901;
and (2) delivery of a controlled substance, Cook County, Illinois,
Case No. 03 CR 2139301. See Crim. Case, Sentencing Tr. at 5-13
(October 24, 2011) (d/e 95); Sentencing Tr. at 43 (October 12,
2011) (d/e 94); Presentence Investigation Report (PSR) ¶ 27 (d/e
73). This resulted in an advisory Sentencing Guideline range of
360 months to life. Crim. Case, PSR ¶ 63 (d/e 73). Petitioner faced
a statutory imprisonment range of 10 years to life. Id. ¶ 62.
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Judge McCuskey sentenced Petitioner to 327 months’
imprisonment. Crim. Case, Judgment (d/e 75). Petitioner
appealed.
On appeal, the Seventh Circuit affirmed Petitioner’s
conviction but vacated his sentence and remanded for
resentencing. United States v. Gulley, 722 F.3d 901, 911 (7th Cir.
2013). The Seventh Circuit held that the Fair Sentencing Act
applied to Petitioner in light of Dorsey v. United States, 567 U.S.
260 (2012)—decided after Petitioner’s sentencing—and that the
district court’s failure to apply the Fair Sentencing Act was not
harmless. Id.
On remand, the Probation Office prepared a Memorandum
noting that Petitioner qualified as a career offender. Crim. Case,
Mem. ¶ 6. The Memorandum provided that Petitioner faced a
statutory maximum of 30 years’ imprisonment (no mandatory
minimum) and an advisory Guideline range of 262 to 327 months.
Id. ¶ 10.
At the resentencing hearing, Judge McCuskey noted
Petitioner’s career offender status. See Crim. Case, Sentencing Tr.
at 6, 14, 15 (March 11, 2014) (d/e 111). Judge McCuskey
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sentenced Petitioner to 168 months’ imprisonment. Crim. Case,
Judgment (d/e 108). Petitioner appealed but voluntarily dismissed
the appeal. Crim. Case, Notice of Appeal (d/e 112); Mandate,
August 21, 2014 (d/e 116).
In May 2017, Petitioner filed his § 2255 Motion. Because of
Judge McCuskey’s retirement from his position as a District Court
Judge, the case has been assigned to this Court.
II. ANALYSIS
A person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief
under § 2555 is an extraordinary remedy because a § 2255
petitioner has already had “an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Petitioner argues that his two prior convictions for controlled
substance offenses do not qualify as predicate offenses under the
career offender guideline. Petitioner claims that the underlying
statutes of conviction are broad and provide for “more than one
way to commit the offense.” Mot. at 4; see also U.S.S.G. § 4B1.1(a)
(providing that a defendant qualifies as a career offender where, in
addition to other requirements, he has at least two prior felony
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convictions of either a crime of violence or a controlled substance
offense). Petitioner does not identify the underlying statutes of
conviction or provide any additional argument. Petitioner asserts,
however, that he could not bring this claim until the decision in
Mathis v. United States, 136 S. Ct. 2243 (2016) (holding that the
modified categorical approach for determining whether a prior
conviction constitutes a violent felony under the similarly worded
Armed Career Criminal Act (ACCA) only applies to divisible
statutes, and a statute is not divisible if the statute lists alternative
means of committing the crime as opposed to alternative
elements).
Deviations from the Sentencing Guidelines are generally not
cognizable under 28 U.S.C. § 2255. See Welch v. United States,
604 F.3d 408, 412 (7th Cir. 2010). To obtain relief under § 2255, a
petitioner must show that his sentence violates the Constitution or
laws of the United States, the court was without jurisdiction to
impose the sentence, the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack. 28
U.S.C. § 2255(a). That is, relief is “appropriate only for an error of
law that is jurisdictional, constitutional, or constitutes a
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fundamental defect which inherently results in a complete
miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594
(7th Cir. 2004) (internal quotation marks omitted). The Seventh
Circuit has held that an erroneous determination that a petitioner
was a career offender is not a cognizable error under § 2255 after
the Guidelines were made advisory. United States v. Coleman, 763
F.3d 706, 708 (7th Cir. 2014) (finding that the petitioner’s claim
that his prior conviction no longer qualified as a predicate offense
under the career offender guideline in light of recent precedence
was not cognizable on a § 2255 motion); Hawkins v. United States,
706 F.3d 820, 823 (7th Cir. 2013), opinion supplemented on denial
of reh’g, 724 F.3d 915 (7th Cir. 2013) (finding erroneous
determination that the petitioner was a career offender was not
cognizable under § 2255, noting in particular the interest in
finality).
In this case, Petitioner was sentenced under the advisory
Sentencing Guidelines to a sentence well below the advisory
Guideline range and well below the statutory maximum of 30
years’ imprisonment. Petitioner has not identified any error of
constitutional or jurisdictional magnitude, a violation of federal
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law, or a defect that resulted in a complete miscarriage of justice.
See Hawkins, 706 F.3d at 824 (noting that a sentence well below
the statutory maximum should not be considered a “miscarriage of
justice . . . just because the judge committed a mistake en route to
imposing it”).
Petitioner relies on Mathis to support his argument, but
Mathis is a case of statutory interpretation, not constitutional law.
See Holt v. United States, 843 F.3d 720, 722 (7th Cir. 2016)
(finding that Mathis did not authorize a successive § 2255 petition
in part because Mathis did not announce a new rule of
constitutional law); Dawkins v. United States, 829 F.3d 549, 550
(7th Cir. 2016) (same). Therefore, Petitioner is not entitled to relief.
Petitioner’s § 2255 Motion is also untimely. A one-year period
of limitation applies to § 2255 petitions. 28 U.S.C. § 2255(f). The
one-year period begins to run 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;
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(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)(1)-(4).
In this case, the only two possible dates from which the oneyear period began to run are the dates provided under § 2255(f)(1)
and (f)(3) because Petitioner does not allege any government action
prevented him from making a motion (§ 2255(f)(2)) or that he
recently discovered, through the exercise of due diligence, facts
supporting the claim (§ 2255(f)(4)).
Petitioner’s conviction became final November 19, 2014, 90
days after Petitioner voluntarily dismissed his second appeal and
the Seventh Circuit issued the mandate. See Latham v. United
States, 527 F.3d 651, 653 (7th Cir. 2008) (finding the one-year
period began to run 90 days after the petitioner voluntarily
dismissed his direct appeal and the mandate was issued); Clay v.
United States, 537 U.S. 522, 525 (2003) (when a defendant takes
an unsuccessful direct appeal, the one-year period begins to run
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when the time for filing a petition for certiorari expires); Sup. Ct. R.
13.1 (requiring a petition for certiorari be filed within 90 days after
entry of judgment). Petitioner’s § 2255 Motion filed on May 31,
2017 was clearly filed beyond one-year from the date the
conviction was final.
The other possible date for calculating the one-year period is
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.” 28 U.S.C. § 2255(f)(3). Petitioner relies on
Mathis as the basis for his relief. However, the Supreme Court did
not recognize a new right in Mathis.
“[A] case announces a new rule if the result was not dictated
by precedent existing at the time the defendant’s conviction
became final.” Teague v. Lane, 489 U.S. 288, 301 (1989)
(emphasis in original). The language in Mathis appears to
contradict any assertion that Mathis announced a new rule. In
Mathis, the Supreme Court stated:
Our precedents make this a straightforward case. For
more than 25 years, we have repeatedly made clear that
application of ACCA involves, and involves only,
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comparing elements. Courts must ask whether the
crime of conviction is the same as, or narrower than, the
relevant generic offense. They may not ask whether the
defendant's conduct—his particular means of
committing the crime—falls within the generic
definition. And that rule does not change when a statute
happens to list possible alternative means of
commission: Whether or not made explicit, they remain
what they ever were—just the facts, which ACCA (so we
have held, over and over) does not care about.
Mathis, 136 S. Ct. at 2257. Moreover, several cases have
held that Mathis does not trigger a new one-year period under
§ 2255(f)(3). See Davis v. United States, Nos. 2:13-CR-46JRG-8, 2:16-CV-363-JRG, 2016 WL 7234762, at *2 (E.D.
Tenn. Dec. 13, 2016) (holding that Mathis “involved
application of the categorical approach first adopted by the
Supreme Court in Taylor and refined in the Descamps [v.
United States, 133 S. Ct. 2276 (2013)] decision to a new set of
facts” and did not articulate a new right for purposes of
§ 2255(f)(3)); Dimott v. United States, Nos. 2:06-cr-26-GZS,
2:16-cv-347-GZS, 2016 WL 6068114, at *3 (D. Maine Oct. 14,
2016) (Mathis does not trigger a new one-year period for
habeas relief under § 2255(f)(3)), appeal filed; but see Staples
v. True, No. 16-cv-1355-DRH, 2017 WL 935895, *3 (S.D. Ill.
Page 10 of 12
March 8, 2017) (involving a motion brought under 28 U.S.C.
§ 2241 and stating, in what appears to be dicta, that the
petitioner may fail in showing that relief under § 2255 is
inadequate because the petitioner was still within a year of
the date Mathis was decided). Therefore, Petitioner’s § 2255
Motion is also untimely.
III. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255
Proceedings For the United States District Courts, the Court
declines to issue a Certificate of Appealability. A certificate may
issue only if Petitioner has made a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Petitioner
must show that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Peterson v. Douma,
751 F.3d 524, 528 (7th Cir. 2014) (quotations omitted). Because
the claims at issue do not satisfy this standard, the Court denies a
Certificate of Appealability.
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IV. CONCLUSION
Because it plainly appears from the Motion and the record of
the prior proceedings that Petitioner is not entitled to relief, the
Motion Under 28 U.S.C. § 2255 to Vacate , Set Aside, or Correct
Sentence by a Person in Federal Custody (d/e 1) is SUMMARILY
DISMISSED. The Clerk is DIRECTED to notify Petitioner of the
dismissal. The Court also denies a certificate of appealability.
THIS CASE IS CLOSED.
ENTER: June 5, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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