United States of America v. Flournoy
Filing
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MEMORANDUM Opinion and Order; Mr. Flournoy's motion to amend 5 is granted, but his motion under § 2255 1 is denied. The Court declines to issue a certificate of appealability. See the attached order for full details. Signed by the Honorable Iain D. Johnston on 5/10/2021: Mailed notice (yxp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
United States of America,
Respondent,
v.
Michael Flournoy,
Movant.
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No. 20 CV 50236
Judge Iain D. Johnston
MEMORANDUM OPINION AND ORDER
Michael Flournoy has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence. Specifically, he contends that the sentencing court miscalculated his
sentencing range under the U.S. Sentencing Guidelines by including criminal history points for a
prior conviction that was later vacated. For the reasons that follow, Mr. Flournoy’s motion is
denied.
BACKGROUND
A jury found Mr. Flournoy guilty of two offenses involving cocaine, conspiracy to
possess with the intent to distribute, and attempted possession with the intent to distribute. See
United States v. Sanabria-Sanchez, et al., No 12 CR 50044 (N.D. Ill.) (“Crim.”) Dkt. 102. On
June 17, 2014, District Judge Kapala, who has since taken inactive senior status, sentenced Mr.
Flournoy. He calculated his offense level under the U.S. Sentencing Guidelines to be 32, his
criminal history points to be 9 yielding a criminal history category of IV, his guidelines
sentencing range to be 168-210 months, and sentenced him to 204 months’ incarceration plus
five years’ supervised release. Crim. Dkt. 217, 237 at 24. Mr. Flournoy appealed seeking a new
trial, arguing that the government used perjured testimony, its evidence was insufficient, and its
closing argument was improper. See United States v. Flournoy, 842 F.3d 524 (7th Cir. 2016).
He also argued that the sentencing court erred by imposing discretionary conditions of
supervised release without explaining its rationale. Id. The Seventh Circuit affirmed Mr.
Flournoy’s conviction, but vacated his sentence and remanded for resentencing to correct the
conditions of supervised release. Id. at 530-31. On April 26, 2017, Judge Kapala entered an
amended judgment resentencing Mr. Flournoy. Crim. Dkt. 327. Because of an intervening
reduction to offense levels for drug offenses under the sentencing guidelines, on resentencing
Judge Kapala calculated a total offense level of 30, a criminal history category that remained IV,
a new guidelines range of 135-168 months, and sentenced him to 160 months’ incarceration plus
five years’ supervised release. Crim. Dkt. 327, 345 at 9, 18. Mr. Flournoy again appealed, but
the Seventh Circuit affirmed. See United States v. Flournoy, 714 Fed. Appx. 587 (7th Cir.
2018).
On March 14, 2019, Mr. Flournoy filed his first motion under 28 U.S.C. § 2255 seeking
to vacate, set aside, or correct his sentence because the government suppressed favorable
evidence, his appellate counsel was ineffective, and he is actually innocent. See Flournoy v.
United States, No. 19 CV 50067 (N.D. Ill.). On April 16, 2020, Judge Kendall, who inherited
the case from Judge Kapala, denied the motion. Id.
While his first § 2255 motion was pending, on April 8, 2019, Mr. Flournoy filed a motion
in state court seeking to vacate a 2002 conviction for violating 720 ILCS 5/24-1.6(A)(1)(3)(A),
aggravated unlawful use of a weapon. Dkt. 1 at 40. In his motion to vacate, Mr. Flournoy
argued that his conviction was invalid because in 2015 the Illinois Supreme Court found that 720
ILCS 5/24-1.6(A)(1)(3)(A) was facially unconstitutional in People v. Burns, 79 N.E.3d 159 (Ill.
2015). Id. On August 1, 2019, the state court granted his motion and vacated his 2002
conviction. Dkt. 1 at 42-43. Mr. Flournoy never alerted either Judge Kapala or Judge Kendall
while his initial § 2255 remained pending that his state conviction had been vacated on August 1,
2019.
A week-and-a-half after Judge Kendall denied Mr. Flournoy’s first § 2255 motion, on
April 27, 2020, he filed a motion with the Seventh Circuit seeking authorization to file a second
or successive § 2255 motion based on his vacated state conviction. See Flournoy v. United
States, No. 20-1756 (7th Cir.). He proposed arguing in a successive § 2255 that his sentencing
range under the advisory guidelines was improper because three of his nine criminal history
points were attributable to his state court weapons conviction that had now been vacated. Dkt. 1
at 48. On June 5, 2020, the Seventh Circuit denied authorization because Mr. Flournoy did not
satisfy either of the two requirements to obtain leave to file a successive petition in that he did
not rely on newly discovered evidence of his actual innocence, or a new constitutional rule that
the Supreme Court made retroactive. Id. Dkt. 1 at 49. The Seventh Circuit also questioned
whether Mr. Flournoy even needed leave to file his proposed § 2255 because “if a claim depends
on facts that did not exist at the time of a first collateral attack, then a new collateral attack
raising that claim will not be successive,” citing United States v. Obeid, 707 F.3d 898, 902-03
(7th Cir. 2013). Dkt. 1 at 49. But the Seventh Circuit foresaw two potential problems for Mr.
Flournoy if he attempted to avail himself of Obeid. First, even though Mr. Flournoy’s state
weapons conviction was vacated after he filed his original § 2255 motion, he might still have
been able to raise the issue in his original § 2255, for instance he could have asked to amend. Id.
Second, it noted that challenges to an advisory guidelines range are not cognizable in a collateral
attack, citing Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013). Id.
On June 16, 2020, Mr. Flournoy filed the instant § 2255 motion. Dkt. 1. As proposed, he
argues that he should be resentenced because Judge Kapala’s calculation of his guidelines range
included three criminal history points for a state weapons offense that has since been vacated.
He also argues that the three criminal history points should be set aside for the additional reason
that his Presentence Investigation Report which sets out his guidelines calculations refers to his
2002 weapons offense not as “Aggravated Unlawful Use of a Weapon,” the offense for which he
had been convicted, but rather as the “Aggravated Unlawful Use of a Vehicle,” an offense Mr.
Flournoy contends does not exist. The court set a briefing schedule and the motion is now fully
briefed. Before the government responded, Mr. Flournoy filed a motion to amend [5] his § 2255
because one page of his supporting memorandum was missing, and he attached the complete
memorandum. The motion to amend [5] is granted.
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ANALYSIS
The normal avenue available to a federal prisoner to collaterally attack his sentence is 28
U.S.C. § 2255. But the ability to obtain relief under § 2255 is limited: for instance, a motion
must be brought within one year of the conclusion of the direct appeal, see 28 U.S.C. § 2255(f); a
prisoner may bring only one motion under § 2255 as of right, see § 2255(h); and a second or
successive motion must be based on either newly discovered evidence or a Supreme Court case
involving a new interpretation of the U.S. Constitution, see § 2255(h)(1), (2). There are limited
exceptions. Even though a federal prisoner has already filed one § 2255 motion that was fully
adjudicated, a subsequent § 2255 motion will not be considered “second or successive,” and thus
will not require authorization, where the motion is “based on a claim that did not become ripe
any earlier than until after the adjudication of the petitioner’s first petition.” United States v.
Obeid, 707 F.3d 898, 903 (7th Cir. 2013). Applying Obeid, in McNair v. United States, 962 F.3d
367, 369 (7th Cir. 2020), the Seventh Circuit held that “a § 2255 petition based on the vacatur of
a state conviction may be maintained as an ‘initial’ § 2255 motion on the theory that the claim
was unripe until the state court acted.”
However, Obeid and McNair establish only the potential that Mr. Flournoy can proceed.
Motions brought under 28 U.S.C. § 2255 must satisfy other requirements, including one that Mr.
Flournoy cannot: timeliness. Under § 2255(f)(4), a motion must be brought within a year of
“the date on which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.” As applied to a motion based on a vacatur order, the year
begins on the date that the movant “‘is in a position to realize that he has an interest in
challenging the prior conviction with its potential to enhance the later sentence,’” which is no
later than “‘the date of judgment.’” McNair, 962 F.3d at 369-70 (quoting Johnson v. United
States, 544 U.S. 295, 308-09 (2005)). In McNair, the defendant’s date of judgment for his
federal conviction was July 22, 2003, but he did not first seek to vacate an earlier state
conviction that contributed criminal history points to his federal sentence until four years later in
July 2007, which the Seventh Circuit held was well beyond the year allowed under § 2255(f)(4)
and far too late. Id. at 370.
As applied to Mr. Flournoy’s case, the date of his amended judgment was April 26, 2017,
but he waited until April 8, 2019, to first seek to vacate his state weapons conviction, which
under McNair was beyond the year allowed under § 2255(f)(4). The Illinois Supreme Court had
held in 2015 that the state statute of conviction, 720 ILCS 5/24-1.6(A)(1)(3)(A), was facially
unconstitutional and so nothing impeded him from seeking to vacate his state weapons
conviction within one year of his amended judgment. Thus, even though the state conviction
was not actually vacated until August 1, 2019, and he filed this § 2255 motion less than a year
later on June 16, 2020, his year to file began not on August 1, 2019, but rather on April 26, 2017,
the date by which he was “in a position to realize that he ha[d] an interest in challenging the prior
conviction.” McNair, 962 F.3d at 369-70 (internal quotation marks and citation omitted).
Accordingly, Mr. Flournoy’s § 2255 motion based upon his vacated state conviction is untimely
and for that reason is denied.
Although the Court has determined that Mr. Flournoy’s motion must be denied as
untimely, for completeness it briefly addresses two other arguments the parties have made. First,
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Mr. Flournoy argues that he should not have received the three criminal history points because
his PSR identified his previous offense as “Aggravated Unlawful Use of a Vehicle” rather than
“Aggravated Unlawful Use of a Weapon.” But that is an argument Mr. Flournoy could have
made at sentencing or on direct appeal, and he has not identified both cause and prejudice for
excusing that procedural default. See McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016)
(issues not raised at trial or on direct appeal are barred from collateral review and procedurally
defaulted unless the defendant can show both cause and prejudice from the failure to appeal). In
any event, under U.S.S.G. 4A1.1(a), three criminal history points are assessed based not on the
name or nature of the offense, but rather because his sentence for the offense exceeded one year
and one month, specifically, seven years. Thus, the misnomer did not affect the assessment of
his criminal history points.
Second, the government argues that Mr. Flournoy’s motion must be denied for the
additional reason that errors in calculating a defendant’s sentencing range under the guidelines
are not cognizable under 28 U.S.C. § 2255 now that the guidelines are merely advisory and no
longer mandatory. See United States v. Hawkins, 706 F.3d 820, 824 (7th Cir. 2013). The
Seventh Circuit raised the same point when denying Mr. Flournoy authorization to file a second
or successive § 2255 motion. See Dkt. 1 at 49. However, the Court is not convinced that Mr.
Flournoy’s state court vacatur is relevant only to the assessment of criminal history points under
the guidelines. A defendant’s criminal past is also relevant to that defendant’s history and
characteristics, which a sentencing court must take into account under 18 U.S.C. § 3553(a)(1).
But the Court need not address the issue further because even if his argument was cognizable
under § 2255, his motion must still be denied as untimely.
CONCLUSION
For the reasons given, Mr. Flournoy’s motion to amend [5] is granted, but his motion
under § 2255 [1] is denied.
Mr. Flournoy is advised that this is a final decision ending his case in this Court. If he
wants to appeal, he must file a notice of appeal with this Court within 30 days of the entry of
judgment. See Fed. R. App. P. 4(a)(1). Mr. Flournoy need not bring a motion to reconsider this
Court’s ruling to preserve his appellate rights. However, if he wishes the Court to reconsider its
judgment, he may file a motion under Federal Rule of Civil Procedure 59(e) or 60(b). Any Rule
59(e) motion must be filed within 28 days of the entry of this judgment. See Fed. R. Civ. P.
59(e). A timely Rule 59(e) motion suspends the deadline for filing an appeal until the Rule 59(e)
motion is ruled upon. See Fed. R. App. P. 4(a)(4)(A)(iv). A Rule 60(b) motion must be filed
within a reasonable time and, if seeking relief under Rule 60(b)(1), (2), or (3), must be filed no
more than one year after entry of the judgment or order. See Fed. R. Civ. P. 60(c)(1). A Rule
60(b) motion suspends the deadline for filing an appeal until the Rule 60(b) motion is ruled upon
only if the motion is filed within 28 days of the entry of judgment. See Fed. R. App. P.
4(a)(4)(A)(vi). The time to file a Rule 59(e) or 60(b) motion cannot be extended. See Fed. R.
Civ. P. 6(b)(2).
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
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only if defendant has made a substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(2). The court finds that while defendant has attempted to raise claims through
his motion for relief under § 2255, his claims are either untimely, procedurally defaulted and/or
without merit, and the Court does not find that “reasonable jurists could debate whether (or, for
that matter, agree that) the [motion] 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.
Date: May 10, 2021
By:
_________________________________________
Iain D. Johnston
United States District Judge
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