Beard v. United States of America
Filing
7
OPINION entered by Judge Sue E. Myerscough on 10/28/2014. The United States of America's Motion to Dismiss the Petitioner's Motion Pursuant to 28 U.S.C. § 2255, d/e 4 is GRANTED and Petitioner's Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, d/e 1 is DISMISSED. CASE CLOSED. (MAS, ilcd)
E-FILED
Wednesday, 29 October, 2014 12:45:10 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOHN BEARD,
)
)
Petitioner,
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v.
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)
UNITED STATES OF AMERICA, )
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Respondent.
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No. 14-3103
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Respondent United States of
America’s Motion to Dismiss (d/e 4) Petitioner John Beard’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (d/e 1). Because the Petition is
untimely, the Motion to Dismiss is GRANTED.
I. BACKGROUND
In October 2002, Petitioner was charged in a superseding
indictment with (1) possession of 500 or more grams of a
substance or mixture containing cocaine with intent to distribute,
in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 1); (2)
possession of five or more grams of a mixture or substance
containing cocaine base (“crack”) with intent to distribute, in
violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 2); and
(3) knowingly carrying a firearm during and in relation to a federal
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count
3). See United States v. Beard, No. 02-30040 (C.D. Ill.) at d/e 18.
In November 2002, a jury found Petitioner guilty of all three
counts. Id. at d/e 56; see also Minute Entry of November 27,
2002. In May 2003, the Court sentenced Petitioner to 248
months’ imprisonment, consisting of 188 months on each of
Counts 1 and 2 to run concurrently and 60 months on Count 3 to
run consecutively to Counts 1 and 2. Id. at d/3 69; see also
Minute Entry of May 23, 2003.
Petitioner appealed, and the Seventh Circuit affirmed the
conviction and sentence. United States v. Beard, 354 F.3d 691
(7th Cir. 2004). The United States Supreme Court denied
certiorari on June 14, 2004. Beard v. United States, 542 U.S. 915
(2004).
In May 2005, Petitioner filed a Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, Or Correct Sentence by a Person in Federal
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Custody. See Beard v. United States, Case No. 05-3113 (C.D. Ill.)
at d/e 1. Petitioner asserted that (1) his counsel was ineffective,
(2) his sentence was based on the false testimony of Homer Harris
concerning the quantity of drugs for which Petitioner should be
held accountable, and (3) his rights to due process and trial by
jury were violated. Id. In October 2005, the Court, United States
District Judge Jeanne E. Scott, denied Petitioner relief on Claims 1
and 3 but ordered an evidentiary hearing on Claim 2 to consider
whether Petitioner’s sentence was based on false testimony. Id. at
d/e 8, pp. 2-3.
Following the evidentiary hearing, that Court found Homer
Harris credible but believed that Harris was confused about some
of the transactions, which resulted in a higher drug quantity
attributed to Petitioner. See Tr. of February 28, 2006 proceedings,
pp. 108-112 (d/e 13). The Court granted the petition in part,
finding that while the judgment of conviction on each of the three
counts was not subject to collateral attack, the sentence imposed
was subject to collateral attack because the sentence was based
on an overstated quantity of drugs. See Minute Entry of February
28, 2006.
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A new Presentence Investigation Report (PSR) was prepared,
omitting the drug amounts the Court had previously found were
overstated. See Case No. 05-3113, Tr. at 112 (d/e 13) (ordering
preparation of PSR omitting paragraph 22); Case No. 02-30040,
PSR (d/e 116). At the May 25, 2006 resentencing hearing,
Petitioner objected to the paragraphs of the PSR which held him
accountable for 2,765.45 grams of cocaine as relevant conduct
(down from the 8,889.05 grams attributed to Petitioner in the
original PSR). Compare May 6, 2003 PSR (d/e 71) with April 4,
2006 PSR (d/e 116).
The Court overruled the objections and adopted the PSR’s
findings. See Case No. 02-30040, Tr. at 79-80 (d/e 117);
Sentencing Opinion at 2 (d/e 108). The Court found that Harris
was credible with respect to the amounts set forth in the PSR. The
Court also found that the Government established the drug
amounts by a preponderance of the evidence. See Opinion at 2
(d/e 108). The Court resentenced Petitioner to 248 months’
imprisonment (the same sentence originally imposed) consisting of
188 months’ imprisonment on each of Counts 1 and 2, to run
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concurrently, and 60 months’ imprisonment on Count 3 to run
consecutively to Counts 1 and 2. Id. at 3.
Petitioner appealed, arguing that Harris was not a credible
source. United State v. Beard, 219 F. App’x 536 (7th Cir. 2007).
On March 13, 2007, the Seventh Circuit affirmed, finding it was
within the district court’s discretion to find Harris credible. Id.
Petitioner did not file a petition for writ of certiorari with the
United States Supreme Court.
On July 16, 2008, Petitioner filed an Amended Motion For
Retroactive Application of the Sentencing Guidelines to Crack
Cocaine Offense. See Case No. 02-30040 at d/e 137. On October
20, 2008, the Court granted the Motion and reduced Petitioner’s
sentence to a total of 211 months’ imprisonment, consisting of 151
months’ imprisonment on Counts 1 and 2 to run concurrently to
each other and 60 months’ imprisonment on Count 3 to run
consecutively to Counts 1 and 2. Id. at d/e 141.
In September 2011, Petitioner filed a second Motion for
Retroactive Application of Sentencing Guidelines to Crack Cocaine
Offense. Id. at d/e 143. In March 2012, this Court denied the
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Motion because Amendment 750 did not result in a lower
sentencing range for Petitioner. Id. at d/e 148.
In November 2012, Petitioner sought permission from the
Seventh Circuit to file a second or successive motion under 28
U.S.C. § 2255. The Seventh Circuit dismissed the request, stating
that Petitioner did not have to seek authorization to file a
successive collateral attack under § 2255 because his first § 2255
motion was partially successfully and resulted in a new judgment.
United States v. Beard, Case No. 12-3530 (7th Cir. Nov. 13, 2012)
(available in Case No. 02-30040 at d/e 158).
On July 29, 2013, Petitioner filed a pro se letter in which he
asked that counsel be appointed to litigate issues raised by the
United States Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013) (holding that “any fact that
increases the mandatory minimum is an ‘element’ that must be
submitted to the jury”). Case No. 02-30040 at d/e 160. On
October 10, 2013, this Court denied Petitioner’s request but
granted Petitioner “leave” to file a motion under § 2255. Id. at d/e
164. The Court directed the Clerk of the Court to send Petitioner
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the “Standard 28:2255 Motion to Vacate, Set Aside, or Correct a
Sentence Packet.” Id.
Approximately six months later, on April 8, 2014, Petitioner
filed the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence By a Person in Federal Custody at issue herein.1
Petitioner argues that his due process rights under the Fifth
Amendment were violated when the Court resentenced Petitioner
based on the unreliable testimony of Homer Harris. Petitioner did
not raise a claim related to Alleyne v. United States, 133 S. Ct.
2151. On June 2, 2014, the United States filed a Motion to
Dismiss (d/e 4) the Petition as untimely.
II. ANALYSIS
The United States argues the Petition should be dismissed
because the Petition is untimely and the law of the case precludes
the § 2255 motion. Because the Court finds the Petition is
Petitioner included a certificate of service indicating that he placed the petition
in the prison mail on “March 2014” but does not include a specific date or
indicate that first-class postage was prepaid. See Rule 3(d) of the Rules
Governing Section 2255 Proceedings for the United States District Courts
(providing that a paper filed by an inmate is timely filed if deposited in the
prison’s internal mailing system on or before the last day of filing and the
inmate complies with the declaration requirements, sets forth the date of
deposit, and states that first-class postage has been prepaid). The envelope is
postmarked April 4, 2014. The Petition was docketed by the Clerk’s Office on
April 8, 2014.
1
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untimely, the Court does not address the Government’s law-of-thecase argument.
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;
(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). Petitioner does not assert that
subsections (2) or (3) apply. Therefore, the Court will only address
subsections (1) and (4): whether the limitation period ran within one
year of either the date on which the judgment of conviction became
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final or the date on which the facts supporting the claim could have
been discovered through the exercise of due diligence.
Under subsection (1), the one-year period of limitation begins
to run when the judgment of conviction becomes final. 28 U.S.C. §
2255(f)(1). When a petitioner unsuccessfully appeals his conviction
and sentence and does not petition for writ of certiorari, the
judgment of conviction becomes final for purposes of the § 2255
one-year limitation period when the time expires for filing a petition
for certiorari. Clay v. United States, 537 U.S. 522, 524-25 (2003).
In this case, the amended judgment on resentencing was
docketed on June 2, 2006. On March 13, 2007, the Seventh Circuit
issued its opinion affirming Petitioner’s sentence. United States v.
Beard, 219 F. App’x 536 (7th Cir. 2007). Petitioner did not petition
for a writ of certiorari from the United States Supreme Court.
Because Petitioner had 90 days to seek certiorari review, his
conviction became final on June 11, 2007, (90 days after March 13,
2007. See Supreme Court Rule 13.1. Petitioner did not file his
§ 2255 Petition until April 2014. Therefore, the Petition is untimely
under subsection (1) of § 2255(f).
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Petitioner argues that the facts underlying his claims could
not have been discovered through the exercise of due diligence by
the time his conviction was final. See Response (d/e 5), referring to
28 U.S.C. § 2255(f)(4) (providing that the one year period runs from
“the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence”). But that is the extent of Petitioner’s argument.
Petitioner does not identify the facts that could not have been
discovered earlier, when the facts were finally discovered, or what
efforts Petitioner made to discover those facts. See, e.g. Diggs v.
United States, No. 13 C 9237, 2014 WL 1647018 at *3 (N.D. Ill.
2014) (finding no reason to allow the petitioner to circumvent the
one-year period of limitation set forth in § 2255(f)(1) where the
petitioner did not identify the facts he referred to, when he actually
discovered those facts, or why he was not able to timely identify
those facts).
In his Motion for Appointment of Counsel and Affidavit of
Support (d/e 2), Petitioner stated that he determined the Court
committed an error “as I now have learn[ed] through reading all of
my sentencing hearings and other records.” Petitioner does not
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indicate when he received the sentencing transcript and other
records. Moreover, Petitioner was at the sentencing hearings and
would have been aware of what occurred at those hearings.
Therefore, subsection (4) of § 2255(f) does not provide the date for
calculating the one-year period of limitation.
Petitioner also argues that equitable tolling should apply. The
one-year period of limitation for § 2255 cases is subject to equitable
tolling. United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.
2000) (also noting that “equitable tolling is granted sparingly”).
Equitable tolling is limited to those cases that involve
“[e]xtraordinary circumstances far beyond the litigant’s control” that
prevented timely filing of the § 2255 petition. Id. Moreover, the
petitioner must have been pursuing his rights diligently. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
Petitioner argues that equitable tolling should apply because
he was diligently seeking the assistance of an attorney or pro se
legal aid. However, a petitioner’s lack of legal expertise and counsel
during the applicable period does not constitute extraordinary
circumstances warranting equitable tolling. See, e.g., Tucker v.
Kington, 538 F.3d 732, 735 (7th Cir. 2008) (“standing alone, lack of
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legal expertise is not a basis for invoking equitable tolling”); Turner
v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (“neither a plaintiff’s
unfamiliarity with the legal process nor his lack of representation
during the applicable filing period merits equitable tolling”).
Petitioner also asserts that he has actively pursued his judicial
remedies by writing a letter to the Court in July 2013 regarding the
recent Supreme Court case of Alleyne, filing his § 2255 petition on
“March 4, 2014”, and writing to his former attorney in February
2014. Even if such efforts constituted diligence, Petitioner provides
no evidence of diligence between June 11, 2007—the date his
conviction became final—and July 2013 when he first contacted the
Court. See Guereca v. United States, No. 09 C 4927, 2009 WL
5218075, at * 3 (N.D. Ill. Dec. 30, 2009) (the petitioner was not
entitled to equitable tolling because he did not show he was
pursuing his rights diligently during the 13 years that elapsed
between the date his conviction became final and the date he filed
his current § 2255 petition; even excluding the time periods when
he was pursuing other motions, he made no showing he was
pursuing his rights during the remaining five years). Consequently,
Petitioner is not entitled to equitable tolling.
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Petitioner did not file his § 2255 Petition within one year of the
date the conviction became final or the date on which the facts
supporting the claim could have been discovered through the
exercise of due diligence. Moreover, equitable tolling does not
apply. Therefore, Petitioner’s § 2255 Petition is time-barred.
III. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255
Proceedings For the United States District Courts, this Court
declines to issue a Certificate of Appealability. Reasonable jurists
would not dispute that the action is barred by the applicable period
of limitation. See 28 U.S.C. § 2253(c)(2).
IV. CONCLUSION
For the reasons stated, the United States of America’s Motion
to Dismiss the Petitioner’s Motion Pursuant to 28 U.S.C. § 2255
(d/e 4) is GRANTED and Petitioner’s Motion Under § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (d/e 1) is DISMISSED. CASE CLOSED.
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ENTER: October 28, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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