Still v United States of America

Filing 6

OPINION entered by Judge Sue E. Myerscough on 4/17/2017. The Court DISMISSES the Motion, d/e 1 without prejudice for lack of jurisdiction. The Court declines to issue a certificate of appealability. Case CLOSED. (SEE WRITTEN OPINION) (MAS, ilcd)

E-FILED

Tuesday, 18 April, 2017 10:59:43 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JACKLYN STILL a/k/a
JACKLYN GEBHARDT,

)
)
)
Petitioner,
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)
v.
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UNITED STATES OF AMERICA, )
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Respondent.
)

No. 17-cv-3033

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Petitioner Jacklyn Still,
a/k/a Jacklyn Gebhardt’s pro se Motion (d/e 1) brought pursuant
to 28 U.S.C. § 2255 (§ 2255 Motion). Because the Motion is a
successive motion that the Court of Appeals has not granted
Petitioner leave to file, the Court dismisses the Motion for lack of
jurisdiction. Even if this Court had jurisdiction, however, the
§ 2255 Motion is untimely and barred by the waiver in Petitioner’s
plea agreement.

I. BACKGROUND
In early 2011, Petitioner pled guilty to Mail Fraud (Count 1) and
Unlawful Monetary Transaction (Count 2) pursuant to a plea
agreement in United States v. Still, Case No. 3:11-cr-30016. In the
plea agreement, Petitioner waived several rights, including her right
to collaterally attack her sentence under 28 U.S.C. § 2255. Case
No. 3:11-cr-30016, Plea Agreement ¶ 12 (d/e 13). On October 31,
2011, the Court sentenced Petitioner to 108 months on each of
Count 1 and Count 2, to run concurrently; five years’ supervised
release on Count 1 and three years’ supervised release on Count 2,
to run concurrently; a $200 special assessment, and $4,548,049.51
in restitution. Case No. 3:11-cr-30016, Judgment (d/e 67) (dated
November 4, 2011).
On November 16, 2012, Petitioner filed a motion to vacate, set
aside, or correct her sentence pursuant to 28 U.S.C. § 2255 in Case
No. 12-3308. Petitioner raised a claim of ineffective assistance of
counsel, arguing that counsel failed to have Petitioner evaluated by
a psychiatrist or psychologist prior to sentencing. Case No. 3:12cv-3308, Opinion at 6 (d/e 3). Petitioner asserted that, had she
been evaluated, the doctor would have determined that she suffered
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from a mental impairment, and the Court would likely have
imposed a lower sentence. Id.
This Court reviewed the pertinent provisions of Petitioner’s plea
agreement in which she agreed to waive her right to bring either a
direct appeal or a collateral attack of her conviction or sentence.
Case No. 3:12-cv-3308, Opinion at 4 (d/e 3). The Court also
reviewed the transcript of Petitioner’s Rule 11 hearing. Id. On
January 9, 2013, this Court denied the Motion on the ground that
Petitioner waived her right to bring her § 2255 claim. Id. at 12.
On February 7, 2017, Petitioner filed the § 2255 Motion at issue
herein. Petitioner argues that the 18-level enhancement to her
offense level that she received based on the amount of loss is
unconstitutional because it is based on uncharged loss amounts.
Mot. at 1; see also PSR ¶ 123 (providing 18-level enhancement
under U.S.S.G. § 2B1.1(b)(1)(J)). The Government has filed a
response (d/e 4), and Petitioner has filed a reply (d/e 5).
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 § 2255 is an extraordinary remedy because a § 2255
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petitioner has already had “an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Post-conviction relief under § 2255 is therefore “appropriate only for
an error of law that is jurisdictional, constitutional, or constitutes a
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).
A prisoner may not file a second or successive § 2255 motion
unless she obtains certification from the Court of Appeals. 28
U.S.C. § 2255(h). However, not every § 2255 motion filed secondin-time is considered a successive petition. A second-filed motion is
successive only if it follows a filing that “‘counts’ as the prisoner’s
first (and only) opportunity for collateral review.” Vitrano v. United
States, 643 F.3d 229, 233 (7th Cir. 2011); see also Potts v. United
States, 210 F.3d 770, 770 (7th Cir. 2000) (explaining when a
previous motion “was the ‘real thing’ that ought to subject the
petitioner” to the limitations the Antiterrorism and Effective Death
Penalty Act places on the filing of successive motions under
§ 2255).

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For instance, where a petitioner successfully challenged his
sentence pursuant to a § 2255 motion and was resentenced, his
second § 2255 motion challenging his resentencing did not
constitute a second or successive motion. Suggs v. United States,
705 F.3d 279, 282 (7th Cir. 2013) (noting the general rule but
finding, in that case, that the motion was successive because the
petitioner challenged his underlying conviction, not his
resentencing). Moreover, a habeas petition filed after a court
dismissed the first petition for failure to exhaust state remedies is
not a second or successive petition. Slack v. McDaniel, 529 U.S.
473, 485-86 (2000).
In this case, Petitioner’s first § 2255 motion was denied
because Petitioner waived her right to collaterally attack her
conviction or sentence in the plea agreement. See Case No. 3:12cv-3308, Opinion (d/e 3). District courts in this Circuit have found
that such a decision “counts” as a petitioner’s first § 2255 motion.
See United States v. Aswege, No. 07-4034, 2007 WL 2700525, at *12 (C.D. Ill. July 13, 2007) (finding that § 2255 motion dismissed as
barred by the waiver in the plea agreement counted as the
petitioner’s first § 2255 motion); United States v. Walker, No. 1:05Page 5 of 10

CR-70, 2009 WL 5170026, at *1 n.1 (N.D. Ind. Dec. 18, 2009)
(noting that, because the court denied the defendant relief based on
the defendant’s waiver of his appeal and post-conviction filing
rights, defendant cannot file any further challenge to his sentence
without first obtaining the permission of the Seventh Circuit).
Because Petitioner has already filed one § 2255 motion, the § 2255
Motion at issue herein is a successive motion. Petitioner has not
obtained certification to file a successive § 2255 Motion from the
Court of Appeals. Therefore, this Court lacks jurisdiction, and the
§ 2255 Motion must be dismissed for lack of jurisdiction.
Even if the Court were to find that the first § 2255 motion did
not count as Petitioner’s first and only opportunity for review, two
other grounds warrant denial of Petitioner’s § 2255 Motion.
First, Petitioner’s § 2255 Motion is 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
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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’s conviction became final on November 18, 2011,
after expiration of the 14-day period to file a direct appeal. Fed. R.
App. P. 4(b)(1)(A); Clark v. United States, 703 F.3d 1098, 1100 (7th
Cir. 2013). Petitioner did not file this § 2255 Motion until February
2017, well beyond the one-year period that ended on November 18,
2012. Therefore, the § 2255 Motion is untimely under 28 U.S.C.
§ 2255(f)(1). Petitioner does not argue, nor does the Court find, that
the other provisions for determining the start of the one-year period
apply.
The second basis for dismissing the § 2255 Motion (assuming
the Motion is not successive) is the same ground on which the first
§ 2255 Motion was denied: that Petitioner waived her right to
collaterally attack her conviction and sentence. A defendant may
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validly waive the right to collaterally attack her conviction or
sentence as part of a valid plea agreement. Keller v. United States,
657 F.3d 675, 681 (7th Cir. 2011) (citing Jones v. United States,
167 F.3d 1142, 1144-45 (7th Cir. 1999)). Courts generally uphold
and enforce such waivers with limited exceptions. The limited
exceptions include when the plea agreement was involuntary, the
district court relied on a constitutionally impermissible factor at
sentencing (like race), the sentence exceeded the statutory
maximum, or the defendant claims ineffective assistance of counsel
for performance directly related to negotiation of the plea
agreement. Keller, 657 F.3d at 681(citing Jones, 167 F.3d at 114445). Petitioner does not argue, and the Court does not find, that
any of these exceptions to enforcement apply. Therefore, the plea
agreement bars collateral review of Petitioner’s claim.
III. CERTIFICATE OF APPEALABILITY
If Petitioner seeks to appeal this decision, she 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 a final order in a § 2255 proceeding unless a circuit justice or
judge issues a certificate of appealability); Sveum v. Smith, 403 F.
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3d 447, 448 (7th Cir. 2005) (per curiam) (holding that a certificate
of appealability is required when the district court dismisses a
motion on the ground that it is an unauthorized, successive
collateral attack). A certificate of appealability may issue only if the
petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In addition, when a
§ 2255 motion is denied on procedural grounds, a certificate of
appealability should issue only when the petitioner shows that
reasonable jurists “would find it debatable whether the district
court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
Petitioner has not made a substantial showing of the denial of
a constitutional right or that a reasonable jurist would find it
debatable whether the district court was correct in its procedural
ruling. Therefore, the Court denies a certificate of appealability.
IV. CONCLUSION
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 (d/e 1) is a successive motion that
the Court of Appeals has not granted her leave to file. Therefore,
the Court DISMISSES the Motion (d/e 1) without prejudice for lack
of jurisdiction. Even if this Court had jurisdiction, however, the
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§ 2255 Motion is untimely and barred by the waiver in Petitioner’s
plea agreement. The Court declines to issue a certificate of
appealability. CASE CLOSED.
ENTER: April 17, 2017
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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