United States of America v. Bingham
Filing
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Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 5/2/2013. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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RANDALL BINGHAM,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 12 C 9643
MEMORANDUM OPINION AND ORDER
Petitioner Randall Bingham has filed a Petition to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255
(“§ 2255 ”).
For the reasons stated below, the petition is
denied.
I.
Bingham was sentenced on December 11, 1998 to a term of 22
months imprisonment and three years of supervised release after
being convicted of conspiracy, in violation of 18 U.S.C. § 371,
and theft of interstate shipments by carrier, in violation of 18
U.S.C. § 659.
United State v. Bingham, No. 97 CR 423-2 (N.D.
Ill.) (Bucklo, J.) (Dkt. No. 87).
As a condition of his
supervised release, Bingham was also ordered to make restitution
in the amount of $1,009,800 and to participate in a drug
aftercare program.
Id.
Bingham was released from federal
custody on March 5, 1999, but on January 11, 2002, Bingham’s term
of supervised release was revoked and he was sentenced to two
years imprisonment, to run concurrently with a state court
sentence, followed by supervised release for a term of two years,
also to run concurrently with a state court sentence.
423-2 (Dkt. No. 146).
No. 97 CR
In 2005, jurisdiction of supervision of
release was transferred to the Northern District of Georgia,
Rome.
No. 97 CR 423-2 (Dkt. No. 149).
Shortly after jurisdiction was transferred, a federal
warrant was issued for Bingham as a result of his being arrested
on new state charges in Georgia.
United States v. Bingham, Dkt.
4:05-CR-47-HLM (N.D. Ga.) (Murphy, J.) (Dkt. No. 2).
According
to the order, Bingham was arrested in Georgia on July 26, 2005,
in connection with charges for theft of property, burglary, and
criminal trespass in Tennessee.
Id.
While he was in custody in
Georgia, Bingham allegedly committed an assault on a detention
officer during an attempt to escape on August 4, 2005.
Id.
Bingham was subsequently charged with felony charges and
convicted in Dade County, Georgia for obstruction of a law
enforcement officer and aggravated assault.
Bingham is currently
serving a twenty-year sentence in Georgia’s Valdosta State
Prison.
Georgia Department of Corrections, Randall Bingham
Information Sheet, available at
http://www.dcor.state.ga.us/GDC/OffenderQuery/jsp/OffQryForm.jsp
(last visited April 3, 2013).
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On April 14, 2011, Judge Harold L. Murphy denied Bingham’s
motion to dismiss supervised release and to dismiss the federal
detainer, effectively delaying revocation beyond the expiration
of Bingham’s term of supervised release.
(N.D. Ga.) (Murphy, J.) (Dkt. No. 5).
Dkt. 4:05-CR-47-HLM
Judge Murphy also denied
Bingham’s motion to transfer jurisdiction of his supervised
release back to Illinois.
(Murphy, J.) (Dkt. No. 9).
Dkt. 4:05-CR-47-HLM (N.D. Ga.)
In this court, Bingham has filed two
lawsuits, both of which were dismissed.
Bingham v. United States
Probation, No. 11 C 5172 (N.D. Ill.) (Coleman, J.) (Dkt. No. 5);
Bingham v. Illinois Dept. of Healthcare and Family Services, No.
09 C 3873 (N.D. Ill.) (Pallmeyer, J.) (Dkt. No. 5).
II.
Under § 2255, a prisoner in federal custody may petition the
court that imposed his sentence to vacate, set aside or correct
the sentence on the ground that it was “imposed in violation of
the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack[.]”
28 U.S.C. § 2255(a).
III.
Petitioner raises a number of claims in his § 2255 petition,
but I have jurisdiction to consider his claims only to the extent
that they challenge the imposition of his sentence or my decision
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to revoke his supervised release on January 11, 2002.
Relief
pursuant to§ 2255 is available only if the petitioner is
challenging the validity of a sentence, not the execution of a
sentence.
1998).
Valona v. United States, 138 F.3d 693, 694 (7th Cir.
The majority of Bingham’s claims seek to challenge the
conditions or terms of his supervised release in Georgia, in
other words, the execution of petitioner’s sentence and not its
imposition.
For instance, petitioner complains of constraints
placed on him by Kathryn Shields, his probation officer in
Georgia (Grounds 1, 5, 8-9).
Bingham also seeks to challenge
Judge Murphy’s refusal to remove the federal detainer against
petitioner (Ground 3) or to dismiss supervised release (Ground
6).
See also United States v. Bingham, No. 4:05-CR-047-01-HLM
(N.D. Ga.) (Murphy, J.) (Dkt. No. 5) (order denying defendant’s
motion to dismiss supervised release and motion for dismissal of
federal detainer).
Finally, Bingham challenges his confinement
in Georgia in August 2005 (Ground 2), and the alleged impediments
placed on him by a Dade County judge and a jail guard, also in
Georgia, when Bingham previously sought to file a federal habeas
corpus petition (Ground 7).
These claims are not properly brought under § 2255 as they
do not constitute a collateral attack on the original sentence or
the 2002 revocation of supervised release.
Moreover,
jurisdiction over Bingham’s supervised release was transferred to
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the Northern District of Georgia, Rome, and the claims described
above (Grounds 1-3, 5-9) are based on events that took place
after jurisdiction was transferred and in a different
jurisdiction.
I lack jurisdiction to hear these claims.
This leaves Bingham’s claim that it was a violation of the
Fifth and Fourteenth Amendments to impose a sentence that
included an order to pay restitution (Ground 4).
Bingham was
ordered to pay restitution in the total amount of $1,009,800 as
part of his original sentence in 1998, No. 97 CR 423-2 (Dkt. No.
87).
Pursuant to § 2255(f), motions filed under that section are
subject to a one-year period of limitation.
The time for
challenging his original conviction and sentence has long passed,
and Bingham has not shown that any of the statutory tolling
provisions apply to the present petition.
In reply, Bingham
argues that he did not receive a copy of the federal detainer or
warrant until December 16, 2010, and filed his first § 2241
petition on July 29, 2011.
But this argument, which assumes that
the delay in receiving a copy of the detainer or warrant would
constitute an impediment “created by governmental action” under
§ 2255(f)(2), relates to his claims regarding the federal
detainer and petitioner’s supervised release.
Because petitioner
has not raised any impediment to his ability to challenge his
original sentence, the date on which his original sentence became
final is the date on which the one-year period began to toll.
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Bingham’s conviction became final when the deadline for appeal
expired, and that date has long passed.
His petition is far
outside of the one-year period and must be dismissed.
I also decline to issue a certificate of appealability, as
no reasonable jurist would find my resolution of the procedural
issue presented to be debatable or wrong.
See Gonzalez v.
Thaler, --- U.S. ----, 132 S.Ct. 641, 648 (2012) (“When, as here,
the district court denies relief on procedural grounds, the
petitioner seeking a COA must show both ‘that jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.’”) (quoting Slack v. McDaniel,
529 U.S. 473, 484, 120 S.Ct. 1595 (2000)) (emphasis added).
ENTER ORDER:
____________________________
Elaine E. Bucklo
United States District Judge
Dated: May 2, 2013
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