United States of America v. Nolan
Filing
9
ORDER : For the following reasons, defendant's § 2255 motion 1 is dismissed. The court declines to issue a certificate of appealability. This matter is terminated. [See STATEMENT] Signed by the Honorable Philip G. Reinhard on 11/20/2017. Mailed notice (jp, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
United States of America,
Plaintiff,
v.
Albridge Nolan,
Defendant.
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Case No: 17 C 50037
Judge Philip G. Reinhard
ORDER
For the following reasons, defendant’s § 2255 motion [1] is dismissed.
declines to issue a certificate of appealability. This matter is terminated.
The court
STATEMENT
On February 7, 2017, defendant Albridge Nolan filed a motion under 28 U.S.C. § 2255
challenging his 18 U.S.C. § 922(g) sentence for possession of a firearm by a felon, in particular
his ACCA sentencing enhancement under 18 U.S.C. § 924(e)(2)(A). See [1]. Defendant argued
that the three prior serious drug offenses that served as the predicates for his ACCA sentence are
no longer valid under Mathis v. United States, 136 S. Ct. 2243 (2016). The government filed a
response on June 5, 2017, arguing that defendant’s motion is untimely and without merit. See
[4]. On June 26, 2017, defendant filed a motion to amend his § 2255 motion [6] and on August
14, 2017 defendant filed a motion to support his motion [7]. On November 17, 2017, the
government filed a Notice of Authority [8]. This matter is now ripe for the court’s review.
First, the government argues that defendant’s motion is untimely. The parties agree that
defendant’s conviction became final on June 4, 2012, and as such his motion is not timely under
28 U.S.C. § 2255(f)(1). The parties disagree, however, with regard to whether the motion is
timely under § 2255(f)(3) on the grounds that it was filed within one year of “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). Defendant argues that his motion is timely because it was filed
within one year of Mathis. The government argues that Mathis did not “newly recognize” a
“right” that was made retroactively applicable. The court agrees.
The court agrees with the government that Mathis did not recognize a new right that was
made retroactively applicable within the meaning of § 2255(f)(3). As the Mathis court made
clear, its holding was controlled by prior precedents. See Mathis, 136 S. Ct. at 2251 (concluding
that “[u]nder our precedents,” the application of those precedents to the statute at issue “resolves
this case”). As the Supreme Court has held, decisions that are dictated by prior precedents do
not constitute “new” rights within the meaning of § 2255(f)(3). See Dodd v. United States, 545
U.S. 353, 358-359 (2005); Brooks v. United States, 2017 WL 3315266, at *4 (C.D. Ill. 2017)
(collecting cases that have found that “Mathis does not trigger a new one-year period under §
2255(f)(3)” because it did not recognize a new right). Moreover, in a related case, the Seventh
Circuit declined to certify a successive habeas motion under § 2255(h)(2), because the proposed
successive motion relied on Mathis, and Mathis did not recognize “a new rule of constitutional
law. Mathis interprets the statutory word ‘burglary’ and does not depend on or announce any
novel principle of constitutional law.” See Holt v. United States, 843 F.3d 720, 722 (7th Cir.
2016). As such, the court agrees with the government that § 2255(f)(3) does not apply, and
therefore defendant’s § 2255 motion is untimely and must be dismissed.
Next, the government points out that, regardless of its timeliness, defendant’s motion is
without merit. As noted, defendant argues that after Mathis, his predicate three 720 ILCS
570/401 Illinois felonies for possession with intent to deliver cocaine, possession with intent to
deliver cocaine, and delivery of cocaine no longer qualify as “serious drug offense” within the
definition of 18 U.S.C. § 924(e)(2)(A). For support, he points to two Fifth Circuit cases, United
States v. Tanksley, 848 F.3d 347 (5th Cir. 2017) and United States v. Hinkle, 832 F.3d 569 (5th
Cir. 2016), which found that a conviction under the Texas statute for delivery of a controlled
substance no longer qualifies after Mathis as a “controlled substance offense” for purposes of the
similarly-worded Guidelines, because the statute penalizes conduct broader than that defined as a
“controlled substance offense,” such as merely offering controlled substances.
As the government has pointed out, however, the Seventh Circuit has just distinguished
Tanksley and Hinkle from the Illinois statute for delivery of a controlled substance. See United
States v. Redden, --- F.3d ----, 2017 WL 5162587 (7th Cir. Nov. 8, 2017). The Seventh Circuit
pointed out that 720 ILCS 570/401, in contrast to the Texas statute, only criminalizes conduct
that fits within the definition of a “controlled substance offense,” and as such, “it would be
frivolous” for a defendant with prior felonies under the Illinois statute “to argue that [he] is not a
career offender.” See Redden, 2017 WL 5162587, at *1. This analysis applies with equal force
to ACCA’s definition of a “serious drug offense.” As such, the court agrees that Mathis does not
apply to the Illinois felony for delivery of a controlled substance and thus defendant’s ACCA
sentence is unaffected by Mathis. Because defendant’s § 2255 is without merit, it must be
dismissed.
Finally, pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings for the United
States District Courts, the court declines to issue a certificate of appealability. A certificate may
issue only if defendant has made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). The court finds that while defendant has attempted to raise the denial of a
constitutional right, his claims are both untimely and without merit, and the court does not find
that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” See Peterson v. Douma, 751 F.3d 524, 528 (7th Cir. 2014)
(quotations omitted). As such, the court declines to issue a certificate of appealability. This
matter is terminated.
Date: 11/20/2017
ENTER:
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United States District Court Judge
Notices mailed by Judicial Staff. (LC)
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