USA v. Bailey
Filing
35
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 8/14/2012:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
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Plaintiff,
v.
RICHARD BAILEY,
Defendant.
No.
97 C 7665
94 CR 481
MEMORANDUM OPINION AND ORDER
Richard Bailey (“Bailey”), whose conviction and sentence
were originally affirmed by our Court of Appeals more than 15
years ago (97 F.3d 982 (7th Cir. 1996)), has once again sought to
upset this Court’s November 26, 1997 dismissal of his 28 U.S.C.
§2255 (“Section 2255”) motion that challenged his conviction and
sentence.
Now Bailey has returned to the well once again, having
recently filed what he captions as his “Motion To Reopen and
Permit Amendment of the §2255 Proceedings in Accordance with Rule
60(b)(4) and Rule 60(b)(6).”
To consider the current motion it is unnecessary to trace
through Bailey’s earlier efforts to obtain relief , all of which
he refers to in his current motion:
a November 2002 motion to
amend the original Section 2255 motion, a 2005 effort to obtain
collateral review (which was denied by the Court of Appeals as a
“second or successive” Section 2255 motion) and a December 2008
effort that was rejected by this Court, with the Court of Appeals
upholding that denial as well.
Instead it is sufficient to focus
on a provision of Section 2255 that sounds the death knell for
Bailey’s latest belated effort--a death knell that Bailey’s
current motion itself reveals.
According to Bailey, this case presents a “cascade of error”
that began with this Court’s misapprehension as to the date that
started Section 2255(f)’s one-year limitations clock ticking.
In
that respect Bailey correctly cites to the Supreme Court’s
decision in Clay v. United States, 537 U.S. 522 (2003), which
reversed and remanded our Court of Appeals’ affirmance of another
District Judge’s rejection of a Section 2255 petition as timebarred.
Clay, id. at 527-32 held that the Section 2255(f)(1)
one-year limitation clock is not started until a defendant’s time
expires for seeking a petition for certiorari to contest the
appellate court’s affirmance of th defendant’s conviction.
Like the District Judge in Clay, in Bailey’s case this Court
adhered to the then-existing Seventh Circuit precedent that did
not defer finality for Section 2255 purposes in the manner later
decided by the unanimous Supreme Court decision in Clay.
That
being so, and on the premise most favorable to Bailey that the
Clay decision would apply retroactively, Bailey’s original
Section 2255 motion would have been timely.
But what Bailey fails to recognize is that Section 2255(f)
itself contemplates just such a possibility and that Bailey’s
current effort to upset what has gone before comes far too late.
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Here is the relevant portion of Section 2255(f):
The limitation period shall run from the latest of -*
*
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(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.
What that means is that the Supreme Court’s March 4, 2003
decision in Clay started a new one-year limitation period, so
that Bailey was given a grace period that expired March 4, 2004
within which he could have launched a fresh Section 2255 motion
that would not have been disqualified as “second or successive.”
Bailey did not take advantage of that opportunity.
And that
being the case, his current effort to invoke “principles of
fairness and equity” and to complain about “manifest injustice”-indeed, to seek “equitable tolling” when the Section 2255 statute
would have given him a new opportunity that he did not
pursue--provide him no comfort.
Accordingly Bailey’s current motion is several years out of
time even if his other contentions were to be credited.
Hence
the motion is denied.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
August 14, 2012
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