Eldridge v. USA
Filing
7
OPINION entered by Judge Sue E. Myerscough on 7/29/2016. Petitioner's Motion to Alter or Amend the 6/24/2016 Opinion and Judgment, d/e 5 and a Motion for Leave to File an Amended 28 U.S.C. § 2255 Petition, d/e 6 are DENIED. To the extent necessary, the Court also denies a certificate of appealability under Rule 11(a) of the Rules Governing Section 2255 Proceedings. See 28 U.S.C. § 2253(c)(2). This case remains CLOSED. (SEE WRITTEN OPINION) (MAS, ilcd)
E-FILED
Friday, 29 July, 2016 04:50:06 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD LEE ELDRIDGE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 16-cv-3173
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
On June 15, 2016, Petitioner Richard Lee Eldridge filed a
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence By a Person in Federal Custody (d/e 1), which the Court
summarily dismissed. Petitioner has now filed a Motion to Alter or
Amend the 06/24/2016 Opinion and Judgment (d/e 5) and a
Motion for Leave to File an Amended 28 U.S.C. § 2255 Petition (d/e
6). Because amendment would be futile, the Motions are DENIED.
I. BACKGROUND
In 2008, Petitioner was convicted of conspiracy to
manufacture five or more grams of methamphetamine (Count 1) in
violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B) and
possession and carrying of a firearm in furtherance of and during
and in relation to a drug trafficking crime (Count 2) in violation of
18 U.S.C. § 924(c)(1)(A)(ii). See United States v. Eldridge, United
States District Court, Central District of Illinois, Springfield
Division, Case No. 07-cr-30112. Under § 924(c), an individual
convicted of using or carrying a firearm during and in relation to
any crime of violence or drug trafficking crime, or possessing a
firearm in furtherance of such a crime, receives a five-year
mandatory minimum sentence in addition to the punishment for
the underlying crime. 18 U.S.C. § 924(c)(1)(A)(i). If the firearm is
brandished, the mandatory minimum increases to seven years. 18
U.S.C. § 924(c)(1)(A)(ii).
In his § 2255 Motion, Petitioner alleged that he was entitled
to relief under Johnson v. United States, 135 S. Ct. 2551, 2563
(2015). In Johnson, the United States Supreme Court held that
the residual clause of the Armed Career Criminal Act that defined
a violent felony was impermissibly vague and, therefore, “imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act violates the Constitution’s guarantee of due
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process.” Id. The residual clause of the Armed Career Criminal
Act defined a violent felony to include an offense punishable by
imprisonment for a term exceeding one year that “otherwise
involves conduct that presents a serious potential risk of physical
injury to another [.]” 18 U.S.C. § 924(e)(2)(B)(ii).
Although Petitioner was not sentenced under the Armed
Career Criminal Act, Petitioner sought in his § 2255 Motion to
apply the reasoning of Johnson to the residual clause contained in
18 U.S.C. § 924(c)(3)(B), which defines a crime of violence for
purposes of § 924(c). See 18 U.S.C. § 924(c)(3)(B) (defining a crime
of violence to include a felony “that by its nature, involves a
substantial risk that physical force against the person or property
of another may be used in the course of committing the offense”).
On June 23, 2016, this Court summarily dismissed
Petitioner’s Motion because, even assuming that the reasoning of
Johnson applied to the definition of a crime of violence in
§ 924(c)(3)(B), Petitioner was not entitled to relief. Opinion (d/e 3).
Specifically, Petitioner was convicted of possessing and carrying a
firearm in furtherance of and during and in relation to a drug
trafficking crime, not a crime of violence. Therefore, the definition
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of crime of violence in § 924(c)(3)(B) was not implicated when
Petitioner was sentenced. Judgment under Federal Rule of Civil
Procedure 58 was entered on June 24, 2016. See Judgment (d/e
4).
On July 18, 2016, Petitioner filed the Motion to Alter or
Amend the 06/24/2016 Opinion and Judgment (d/e 5) and the
Motion for Leave to File an Amended 28 U.S.C. § 2255 Petition (d/e
6) at issue herein.
II. ANALYSIS
In the Motions, Petitioner essentially asks the Court to vacate
the previous judgment and grant Petitioner leave to amend his
§ 2255 Motion to argue that 18 U.S.C. § 924(c)(2)—which defines a
drug trafficking crime—is unconstitutionally vague in light of
Johnson. Petitioner argues that § 924(c)(2) defines a drug
trafficking crime using language that impermissibly includes a
person like Petitioner who was not involved in any drug trafficking.
See Am. Mot. (d/e 6 at 6).
A petitioner can amend his § 2255 petition after judgment
has been entered only if the judgment is vacated under either
Federal Rule of Civil Procedure 59(e) or 60(b) and the case has
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been reopened. Rodriguez v. United States, 286 F.3d 972, 980
(7th Cir. 2002) (involving a § 2255 petition); Hunt v. Parsley, No.
08-cv-44-MJR, 2009 WL 1938792, at *1 (S.D. Ill. July 6, 2009)
(“Where a plaintiff wishes to amend his complaint after judgment,
he may do so only after the judgment has been vacated or set aside
pursuant to either Federal Rule of Civil Procedure 59(e) or 60(b)
and the case has been reopened”).
The Court construes Petitioner’s Motion to Alter or Amend the
06/24/2016 Opinion and Judgment as being brought under Rule
59(e) because it was filed within 28 days of entry of the judgment
and seeks to reopen the judgment. See Fed.R.Civ.P. 59(e)
(providing that the motion to alter or amend the judgment “must
be filed no later than 28 days after entry of the judgment”); Borrero
v. City of Chicago, 456 F.3d 698, 699 (7th Cir. 2006) (motion can
be deemed as filed under Rule 59(e) even if it is not labeled as
such).
A plaintiff is entitled to relief under Rule 59(e) if he can clearly
establish (1) that the district court “committed a manifest error of
law or fact” or (2) “that newly discovered evidence precluded entry
of judgment.” Blue v. Hartford Life and Accident Ins. Co., 698 F.3d
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587, 598 (7th Cir. 2012); see also Sigsworth v. City of Aurora, Ill.,
487 F.3d 506, 512 (7th Cir. 2007). A manifest error is the
“wholesale disregard, misapplication, or failure to recognize
controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601,
606 (7th Cir. 2000) (internal quotation marks omitted). Moreover,
Petitioner cannot use Rule 59(e) to make arguments he could have
made before this Court rendered judgment. LB Credit Corp. v.
Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995).
In his motion to alter or amend, Petitioner argues that the
Court should have held him to less stringent standards because he
is pro se. This does not amount to a manifest error of law or fact.
The Court subjected Petitioner’s § 2255 Motion to a less stringent
standard but summarily dismissed the Motion because Petitioner
is not entitled to relief under Johnson. In addition, Petitioner has
not presented newly discovered evidence that would have
precluded entry of judgment. As such, Petitioner’s Motion to Alter
or Amend is denied.
Even if this Court were to grant the Rule 59(e) motion, the
Court would not grant Petitioner leave to amend because the
Page 6 of 8
amendment would be futile. Rodriguez, 286 F.3d at 980 (court
may deny leave to amend if amendment would be futile).
Section 924(c)(2) defines a “drug trafficking crime” as “any
felony punishable under the Controlled Substances Act (21 U.S.C.
801 et seq.), the Controlled Substances Import and Export Act (21
U.S.C. 951 et seq.), or chapter 705 of title 46.” This subsection is
nothing like the residual clause that Johnson found impermissibly
vague. Section 924(c)(2) sets forth the specific felonies that
constitute a drug trafficking crime and does not contain a residual
clause. Therefore, Johnson has no effect on convictions for
§ 924(c) based on drug trafficking crimes, and Petitioner’s
amendment would be futile. See United States v. Parnell, --- F.
App’x ---, No. 14-4100, 2016 WL 3230697, at *4 (3rd Cir. June 13,
2016) (“Johnson does not call into question ‘[§ 924(c)(2)’s]
unambiguous definition of ‘drug trafficking crime’”); United States
v. Gibson, No. 3:07-1057-CMC, 2016 WL 3552008, at *2 (D. S.C.
June 30, 2016) (rejecting the defendant’s argument that all of
§ 924(c) was void for vagueness under Johnson); Polanco v. United
States, No. 1:16-cv-20576-UU, 2016 WL 1357535, at *2 (S.D. Fla.
Apr. 6, 2016) (holding that the Supreme Court’s ruling in Johnson
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is inapplicable to the definition of a drug trafficking crime at 18
U.S.C. § 924(c)(2)).
III. CONCLUSION
For the reasons stated, Petitioner’s Motion to Alter or Amend
the 06/24/2016 Opinion and Judgment (d/e 5) and a Motion for
Leave to File an Amended 28 U.S.C. § 2255 Petition (d/e 6) are
DENIED. To the extent necessary, the Court also denies a
certificate of appealability under Rule 11(a) of the Rules Governing
Section 2255 Proceedings. See 28 U.S.C. § 2253(c)(2). This case
remains CLOSED.
ENTER: July 29, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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