Collins v. United States of America
Filing
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OPINION: Petitioner Ahshun T. Collins' Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 Relief (d/e 1 ) is SUMMARILY DISMISSED. The Clerk is DIRECTED to notify Petitioner of the dismissal. The Court declines to issue a certificate of appealability. This case is CLOSED. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 1/8/2020. (GL, ilcd)
E-FILED
Wednesday, 08 January, 2020 02:57:02 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
AHSHUN T. COLLINS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 18-cv-02066
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Petitioner Ahshun T. Collins’
Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28
U.S.C. § 2255 Relief (d/e 1). The Court must dismiss the motion if
it appears from the motion, any attached exhibits, and the record of
prior proceedings that Petitioner is not entitled to relief. See Rules
Governing Section 2255 Proceedings for the United States District
Courts, Rule 4(b). A preliminary review of Petitioner’s § 2255
motion and the record of prior proceedings establishes that the
motion must be dismissed because Petitioner is not entitled to
relief.
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I. BACKGROUND
On May 5, 2006, Petitioner and several other individuals were
charged in a 10-count Indictment. Petitioner was charged in four
counts. Count 1 of the Indictment charged Petitioner with
conspiring to commit armed bank robbery, commit robbery, and
carry and use a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 371. United States v. Williams et al., Case
No. 06-cr-20032 (hereinafter, Crim.), Indictment (d/e 23), at 1-5.
Count 8 charged Petitioner with armed bank robbery, in violation of
18 U.S.C. § 2113(a) and (d). Id. at 12. Count 9 charged Petitioner
with using and carrying a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c). Id. at 13. Count 10 charged
Petitioner with knowingly possessing a firearm as a felon, in
violation of 18 U.S.C. § 922(g)(1). Id. at 14. On October 25, 2006,
Petitioner pleaded guilty to Counts 1, 8, and 9.
On March 13, 2007, Petitioner appeared before United States
District Judge Michael P. McCuskey for sentencing. Judge
McCuskey sentenced Petitioner to 60 months’ imprisonment on
Count 1 and 134 months’ imprisonment on Count 8, to be served
concurrently, and 84 months’ imprisonment on Count 9, to be
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served consecutively to the terms of imprisonment imposed on
Counts 1 and 8. Crim., Judgment (d/e 195), at 3. Judge
McCuskey also sentenced Petitioner to 3 years of supervised release
on Count 1 and 5 years of supervised release on each of Counts 8
and 9, with the terms to be served concurrently. Id. at 4. Petitioner
did not appeal.
In June 2016, Petitioner filed a § 2255 motion attacking his
career offender sentence based on Johnson v. United States, 135 S.
Ct. 2551 (2015). Collins v. United States, Case No. 16-cv-02181,
Motion (d/e 1). On April 13, 2017, Petitioner, through counsel,
voluntarily dismissed this § 2255 motion. Collins v. United States,
Case No. 16-cv-02181, Notice (d/e 7).
In February 2018, Petitioner filed his Motion to Vacate, Set
Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 Relief,
alleging that his former counsel’s failure to challenge Petitioner’s
career offender designation constituted ineffective assistance of
counsel. In April 2018, Petitioner filed a motion seeking leave to
add a claim that his sentence on Count 9 was imposed in violation
of his Fifth Amendment due process rights. The Court denied the
motion as moot, finding that Petitioner was entitled to amend his §
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2255 motion as a matter of course under Rule 15 of the Federal
Rules of Civil Procedure. The Court noted that it would consider
both of Petitioner’s § 2255 claims.
II. ANALYSIS
A prisoner claiming that his sentence violates the Constitution
may move for the Court “to vacate, set aside, or correct [his]
sentence.” 28 U.S.C. § 2255(a). 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 former counsel’s failure to challenge
Petitioner’s designation as a career offender under the United States
Sentencing Guidelines constituted ineffective assistance of counsel.
According to Petitioner, his designation as a career offender was
erroneous because his sentences on the three qualifying convictions
were imposed on the same day.
Petitioner’s § 2255 motion is untimely with respect to his
claim of ineffective assistance of counsel. A one-year period of
limitation applies to § 2255 motions. 28 U.S.C. § 2255(f). The oneyear period begins to run from the latest of:
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(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.
Id.
With respect to Petitioner’s ineffective assistance claim, the
only two possible dates from which the one-year period began to
run are the dates provided under § 2255(f)(1) and (f)(3) because
Petitioner does not allege that 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)). Section 2255(f)(3) is of no help to Petitioner, as the
Supreme Court recognized a criminal defendant’s right to the
effective assistance of counsel long before Petitioner filed his § 2255
motion. See Strickland v. Washington, 466 U.S. 668, 686 (1984)
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(citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).
That leaves § 2255(f)(1).
Petitioner’s convictions became final on March 30, 2007, after
the expiration of the 14-day period to file a direct appeal. See
Clarke v. United States, 703 F.3d 1098, 1100 (7th Cir. 2013); Fed.
R. App. P. 4(b)(1)(A). Petitioner’s pending § 2255 motion was filed in
February 2018, nearly 11 years later. Petitioner’s claim of
ineffective assistance of counsel is, therefore, untimely under §
2255(f)(1).
Petitioner’s second claim is that his sentence on the § 924(c)
count violates due process because the predicate offense is not a
crime of violence under 18 U.S.C. § 924(c)(3). Even assuming that
this claim is timely under § 2255(f)(3), the claim fares no better
than the first.
Petitioner alleges that the predicate offense for his § 924(c)
conviction is conspiracy to commit armed bank robbery. However,
Count 9 of the Indictment makes clear that the predicate offense
underlying Petitioner’s § 924(c) conviction is armed bank robbery,
as charged in Count 8 of the Indictment. Armed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d), is a crime of violence under
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18 U.S.C. § 924(c)(3). United States v. Armour, 840 F.3d 904, 909
(7th Cir. 2016), as amended (June 26, 2017). Petitioner’s sentence
on Count 9 for carrying and using a firearm during a crime of
violence was not imposed in violation of Petitioner’s Fifth
Amendment due process rights.
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 the final
order in a § 2255 proceeding unless a circuit justice or judge issues
a certificate of appealability). To receive a certificate of appealability
on a ground decided on the merits, Petitioner “must demonstrate
that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying
constitutional claim,” 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
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constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.” Id.; see also Jimenez v. Quarterman, 555 U.S. 113, 118 n.3
(2009). The Court concludes that jurists of reason would not find
Petitioner’s claims or the Court’s procedural ruling debatable.
Therefore, the Court declines to issue a certificate of appealability.
IV. CONCLUSION
For the reasons stated, Petitioner Ahshun T. Collins’ Motion to
Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255
Relief (d/e 1) is SUMMARILY DISMISSED. The Clerk is DIRECTED
to notify Petitioner of the dismissal. The Court declines to issue a
certificate of appealability. This case is CLOSED.
ENTER: January 8, 2020
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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