Jackson v. United States of America
Filing
3
OPINION: Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (d/e 1 ) is a second or successive motion that the court of appeals has not granted him leave to file. Therefore, the Court DISMISSES the Motion without prejudice for lack of jurisdiction. The Court declines to issue a certificate of appealability. The Court refers Petitioner to Rule 22.2 of the Circuit Rules of the United States Court of Appeals for the Seventh Circuit for the procedure to request leave to file a second or successive § 2255 motion. Entered by Judge Sue E. Myerscough on 7/20/2017. (ME, ilcd)
E-FILED
Thursday, 20 July, 2017 03:50:55 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOSEPH JACKSON,
)
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
No. 17-3158
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Petitioner Joseph Jackson’s
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 (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 this is Petitioner’s second § 2255 motion and
Petitioner did not obtain permission from the Seventh Circuit to file
a successive motion.
I. BACKGROUND
On December 28, 2006, Petitioner pled guilty to distribution of
5 or more grams of cocaine base (crack) in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B). See United States v. Jackson, United States
District Court, Central District of Illinois, Springfield Division, Case
No. 06-cr-30079.
On April 30, 2007, Judge Jeanne Scott sentenced Petitioner to
209 months imprisonment and 8 years of supervised release.
On September 4, 2009, Petitioner filed a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (First
Motion). See Jackson v. United States, United States District
Court, Central District of Illinois, Springfield Division, Case No. 09cv-3227. The First Motion claimed that Petitioner received
ineffective assistance of counsel during his underlying criminal case
because his attorney failed to file a notice of appeal as requested by
Petitioner. On August 26, 2013, Judge Richard Mills denied the
First Motion following an evidentiary hearing, finding Petitioner was
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not a credible witness and finding the defense attorneys to be
credible.
On May 18, 2017, Petitioner filed a Memorandum of
Supporting Facts in his underlying criminal case. See Case No. 06cr-30079 (d/e [24]). In response to the Court’s text order stating
the Court’s intent to construe the Memorandum as a § 2255
Motion, Petitioner filed a response stating, “I wish to have my
memorandum construed as a ‘second in time motion.’ In the event
that the Court does not see fit that a second in time motion is the
proper request then I respectfully request that the Court file it as a
successive motion to the Seventh Court of Appeals.” Case No. 06cr-30079 (d/e [25]). The Court thus directed the Clerk of the Court
to file the memorandum as Petitioner’s § 2255 Motion (Second
Motion) in this civil case.
II. ANALYSIS
A prisoner may not file a second or successive § 2255 motion
unless he obtains certification from the court of appeals. 28 U.S.C.
§ 2255(h). In fact, “[a] district court must dismiss a second or
successive petition, without awaiting any response from the
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government, unless the court of appeals has given approval for its
filing.” Nunez v. United States, 96 F. 3d 990, 991 (7th Cir. 1996).
However, not every § 2255 motion filed second-in-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).
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. Walker v. Roth, 133 F.3d
454, 455 (7th Cir. 1997). Moreover, a habeas petition filed after the
first petition was dismissed for failure to exhaust state remedies is
not a second or successive petition. Slack v. McDaniel, 529 U.S.
473, 478 (2000).
Petitioner’s Second Motion is a successive § 2255 motion.
Petitioner already received “one unencumbered opportunity to
receive a decision on the merits” when he filed, and the Court
denied, his First Motion in Case No. 09-3227. See, e.g., Potts v.
United States, 210 F. 3d 770, 770 (7th Cir. 2000) (explaining when
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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).
Petitioner has not obtained certification from the Seventh
Circuit Court of Appeals to file the Second Motion. Therefore, this
Court lacks jurisdiction, and the Second Motion must be dismissed.
Even if the Court were to find that the First Motion did not
count as Petitioner’s first and only opportunity for review,
Petitioner’s Second Motion must be dismissed because it 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
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
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(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). The timeliness of each claim must be
considered independently. Davis v. United States, 817 F.3d 319,
327 (7th Cir. 2016).
Petitioner’s conviction became final on May 16, 2007, 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 the Second Motion until May 2017.
Therefore, it is untimely under 28 U.S.C. § 2255(f)(1).
Petitioner does not argue, nor does the Court find, that
subsections (2) and (4) for determining the one-year period apply.
Petitioner has not alleged a government impediment or new fact
supporting the claim.
The only 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
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relies on Mathis v. United States as the basis for his relief. 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)
applies only to divisible statutes and that a statute is not divisible if
the statute lists alternative means of committing the crime as
opposed to alternative elements). 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,
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
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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-46-JRG8, 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-cv1355-DRH, 2017 WL 935895, *3 (S.D. Ill. 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
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decided). Therefore, Petitioner’s Second Motion is also
untimely.
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); Sveum v. Smith, 403 F. 3d 447, 448
(7th Cir. 2005) (per curiam) (holding that a certificate of
appealability is required to appeal a district court’s dismissal of 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
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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 second or successive
motion that the court of appeals has not granted him leave to file.
Therefore, the Court DISMISSES the Motion without prejudice for
lack of jurisdiction. The Court declines to issue a certificate of
appealability. The Court refers Petitioner to Rule 22.2 of the Circuit
Rules of the United States Court of Appeals for the Seventh Circuit
for the procedure to request leave to file a second or successive §
2255 motion.
ENTER: July 20, 2017
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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