Morning v. USA

Filing 21

ORDER DISMISSING CASE with prejudice. A Certificate of Appealability shall NOT be issued. The Clerk of the Court is DIRECTED to enter judgment accordingly. Signed by Judge William D. Stiehl on 09/25/2012. (jst)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES A. MORNING,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

CIVIL NO. 09-cv-252-WDS

MEMORANDUM & ORDER
STIEHL, District Judge:
Before the Court is petitioner’s motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255 (Doc. 1), to which the government has filed a response (Doc. 12). Also before the
Court is petitioner’s supplement (Doc. 3), objection to the government’s response (Doc. 13),
amended petition (Doc. 18), the government’s response to the amended petition (Doc. 19), and
petitioner’s traverse (Doc. 20).
BACKGROUND
Petitioner was found guilty, after a jury trial, of: (1) conspiracy to possess with intent to
distribute crack cocaine in violation of 21 U.S.C. § 846; (2) possession with intent to distribute
crack cocaine in violation of 21 U.S.C. § 841(a)(1); and (3) possession of a firearm during and in
relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). United States v. Morning,
Case No. 94-cr-30013 (S.D. Ill.). Petitioner was sentenced to a total of 324 months
imprisonment. Petitioner’s convictions and sentences were affirmed on direct appeal. United
States v. Billops, 43 F.3d 281 (7th Cir. 1994). On March 10, 2009, Petitioner moved for a

reduction in his crack cocaine sentence pursuant to 18 U.S.C. § 3582(c)(2) based on a sentencing
guideline that had been lowered and made retroactive by the United States Sentencing
Commission. United States v. Morning, No. 94-30013 (S.D. Ill.). On March 18, 2009, the Court
granted Petitioner’s motion and his total sentence was reduced to 300 months imprisonment. It
appears that Petitioner has not previously sought relief pursuant to 28 U.S.C. § 2255.
In the instant § 2255 motion, Petitioner challenges his conviction and sentence for
possessing a firearm during and in connection with a drug trafficking crime in violation of 18
U.S.C. § 924(c). He asserts two claims: (1) that his lawyer was ineffective;1 and (2) in light of the
Supreme Court’s decision in Bailey v. United States, 516 U.S. 137 (1995), he is “actually
innocent” of violating 18 U.S.C. § 924(c) because he did not “use” the firearm during or in
connection with a drug trafficking crime, which, he asserts, requires proof of “active employment”
of the firearm, and more than mere possession. Petitioner contends that the only evidence
presented at trial applicable to this charge was that a pistol was found on the headboard of a bed
and five other firearms were located throughout the house. Petitioner contends that this evidence
was insufficient - after Bailey - to convict him under § 924(c).
Petitioner’s conviction became final, for purposes of § 2255, on March 16, 1995, when
the time for Petitioner to seek a writ of certiorari to the Supreme Court of the United States
expired. Clay v. United States, 537 U.S. 522, 525 (2003). Because the petitioner’s conviction
became final before April 24, 1996, he was required to file his § 2255 motion on or before April

1

Petitioner claims that counsel was ineffective because he allegedly failed to object to the
presentence report, failed to request that the jury instruction contain language that the government must
show active employment of the firearm, failed to preserve the issue for appellate review, and failed to
properly investigate the case. These claims are bare assertions without any factual or other evidentiary
support (Doc. 1-1 at 2).

2

24, 1997.2 Petitioner filed the instant § 2255 motion on April 1, 2009, nearly twelve years too
late. Unless the Court can find a later, applicable start date, petitioner’s § 2255 motion must be
dismissed as time barred.
ANALYSIS
I.

Timeliness of Motion
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified at 28 U.S.C. §

2255, established a one-year limitation period for filing a motion for relief pursuant to 28 U.S.C. §
2255:
A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall 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
(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) (2008).
A. Petitioner’s Resentencing Did Not Restart the Clock for § 2255 Statute of
Limitation Purposes
To the extent that petitioner asserts that the statute of limitations period restarted because
of his resentencing pursuant to 28 U.S.C. § 3582, and his petition is, therefore, timely, he is

2

Petitioner’s conviction became final before the AEDPA was enacted, which resulted in a grace
period beyond the usual one year statute of limitations. Petitioner had one year from the date of enactment
of the AEDPA, specifically, on or before April 24, 1997, to file his § 2255 motion. Araujo v. Chandler,
435 F.3d 678, 680 (7th Cir. 2005); Newell v. Hanks, 283 F.3d 827, 833 (7th Cir. 2002).

3

mistaken. Pursuant to 18 U.S.C. § 3582(b), “[n]otwithstanding the fact that a sentence to
imprisonment can subsequently be . . . modified pursuant to the provisions of subsection (c) . . . a
judgment of conviction that includes such a sentence constitutes a final judgment for all other
purposes.” Petitioner’s conviction and sentence, therefore, became final upon completion of
direct review. See United States v. Steele, No. 97 C 7040, 1998 WL 26173, at *1 (N.D.Ill.
January 15, 1998).
Although research did not reveal Seventh Circuit authority directly addressing this issue, a
number of other courts have “held that a reduction of sentence under § 3582(c) does not affect
the finality of the judgment of conviction.” United States v. Thomas, No. 03-0257, 2012 WL
3062705, at *4 (E.D.La. July 25, 2012); accord Turner v. United States, No. 10-0413-CG-C,
2012 WL 2088767, at *3 (S.D. Ala. February 16, 2012); Duckett v. United States, No.
4:09cv589, 2012 WL 489206, at *1 (E.D. Tex. February 15, 2012); Williams v. United States,
No. 6:10-cv-1549-Orl-31GJK, 2012 WL 398245, at *2 (M.D.Fla. Feb. 8, 2012); United States v.
Sanders, No. 3:09-cv-00844, 2011 WL 2971156, at *4 (S.D.W.Va. June 29, 2011); United States
v. Wells, No. 3:02cr51/LAC, 2011 WL 1527034, at *2 (N.D. Fla. March 18, 2011); United
States v. Perez, No. 05-40015-FDS, 2010 WL 3169413, at *1 (D.Mass. Aug. 9, 2010); United
States v. Dixon, No. 99-525-03, 2009 WL 1559947, at *3 (E.D. Pa. June 3, 2009); Abbott v.
United States, No. CIV. A. 98-1449, 1998 WL 229652, at *2 (E.D.Pa. April 29, 1998); Gomez v.
United States, No. 3:09-CV-0073-G, 2009 WL 1309338, at *2 (N.D.Tex. May 11, 2009).
Regarding sentencing modifications pursuant to § 3582(c) or Fed. R. Crim. P. 35, the
Fourth Circuit has held that “[t]he plain text of § 3582(b) clearly states that this later modification
does not affect the date on which . . . judgment of conviction became final ‘for all other
4

purposes.’” United States v. Sanders, 247 F.3d 139, 143 (4th Cir. 2001). The “all other
purposes” clause includes the beginning of the § 2255(1) limitation period. Id.; accord United
States v. Schwartz, 274 F.3d 1220, 1224 (9th Cir. 2001). Similarly, the Eighth Circuit has held
that a sentence modification pursuant to Rule 35(b) is not a “judgment of conviction,” and did
not, therefore, begin a new one-year period in which a petitioner could file a motion pursuant to §
2255. Byers v. United States, 561 F.3d 832, 835 (8th Cir. 2009); accord United States v.
Chapman, 220 F.App’x 827, 830 (10th Cir. 2007); Reichert v. United States, 101 F.App’x 13, 14
(6th Cir. 2004).
Furthermore, “‘[t]he Senate Report accompanying § 3582 confirms that the plain meaning
of the statute accords with Congress’s intent. Congress explained that subsection (b) makes
“clear” that though a prison sentence could be “modified” after imposition by way of “three safety
valves,” . . . the “judgment of conviction is final.”’” Thomas, 2012 WL 3062705, at *3 (quoting
Murphy v. United States, 634 F.3d 1303, 1308 (11th Cir. 2011) (citing S.Rep. No. 98-225, at 96
(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3304)). “The plain meaning of § 3582(b) in
conjunction with the Senate Report, other Circuit Court interpretations and district court opinions
confirm that a sentence reduction pursuant to § 3582 does not affect the finality of . . . judgment.”
Thomas, 2012 WL 3062705 at *4.
Accordingly, this Court FINDS that petitioner’s resentencing pursuant to 28 U.S.C. §
3582(c) did not restart the clock for § 2255 statute of limitation purposes, and petitioner’s motion
challenging his underlying conviction cannot be considered timely on this basis.
B. Equitable Tolling
Petitioner’s assertion of “actual innocence” as a result of the Bailey decision leads the
5

Court to believe he may expect the Court to apply an alternative start date: the date the Supreme
Court made Bailey retroactively applicable to cases on collateral review. Using this date,
Petitioner only had until May 18, 1999, one year from the date that Bousley v. United States, 523
U.S. 614 (1998) made Bailey retroactively applicable to cases on collateral review, to file a
motion pursuant to § 2255.3 Petitioner’s motion, according to this alternative date, is still nearly
ten years too late.
Petitioner asserts that his alleged “actual innocence” is a basis for equitable tolling. (Doc.
18 at 9). He cites a Fifth Circuit case, Reyes-Requena v. United States, 243 F.3d 893 (5th Cir.
2001), to support his argument that the § 2255 statute of limitations should be equitably tolled
because he was convicted of an offense which is now “non-existent,” and to find otherwise would
result in a miscarriage of justice. Furthermore, defendant argues that because his co-defendant
Shawn Binford’s § 924(c) conviction was vacated by this Court, his § 924(c) conviction should be
vacated as well. Finally, petitioner argues that the indictment states the charge against him as
using and carrying a firearm, not using or carrying, and because of this, the government had to
prove that he both used and carried a firearm in accordance with the statute.
The statue of limitations for filing a § 2255 motion “is not jurisdictional but is instead a
procedural statute of limitations subject to equitable tolling.” Nolan v. United States, 358 F.3d
480, 483 (7th Cir. 2004). The Court must dismiss petitioner’s claims as time-barred, therefore,
unless the there is an adequate basis to equitably toll the statute of limitations in this case.
The Seventh Circuit has found that the common law doctrine of equitable tolling may

3

But see Dodd v. United States, 545 U.S. 353 (2005) (holding that the date from which the
limitation period begins to run under § 2255(3) is the date that the Court initially recognizes the right
asserted in an applicant’s § 2255 motion, not the date on which the right is made retroactively applicable).

6

apply to § 2255 actions, and would permit a late filing when “extraordinary circumstances far
beyond the litigant’s control . . . prevented timely filing.” Id. at 484. “[T]he equitable tolling of a
statute of limitations is an extraordinary remedy reserved for truly exceptional situations.” Id. at
486. “Equitable tolling of the statute of limitations is such exceptional relief that we have yet to
identify a circumstance that justifies equitable tolling in the collateral relief context.” Id. at 484
(internal citations and quotations omitted). “Equitable tolling is granted sparingly,” and the
“threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.”
United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).
The doctrine of equitable tolling applies to allow a prisoner to file a § 2255 motion outside
the time prescribed by the statute where a party “could not, despite the exercise of reasonable
diligence, have discovered all the information he needed in order to be able to file his claim on
time.” Taliani v. Chrans, 189 F.3d 597, 597 (7th Cir. 1999). In Modrowski v. Mote, 322 F.3d
965, 967-68 (7th Cir. 2003), the Seventh Circuit listed circumstances in which equitable tolling
did not apply: (1) prisoner’s lack of access to trial transcript; (2) lack of response from attorney;
(3) language barrier; (4) lack of legal knowledge; (5) transfer between prisons; (6) unclear law;
(7) death of attorney’s father; (8) attorney negligence; and (9) attorney incapacity.
Misunderstanding the filing deadline does not justify equitable tolling either. Robinson v. United
States, 416 F.3d 645, 652 n.1 (7th Cir. 2005).
The Seventh Circuit has also “held that actual innocence is not a freestanding exception to
the time limits in § 2244(d).” Johnson v. Chandler, 224 F.App’x 515, 519 (7th Cir. 2007) (citing
Araujo v. Chandler, 435 F.3d 678, 681 (7th Cir. 2005)). The Seventh Circuit has commented on
whether “actual innocence” could invoke the doctrine of equitable tolling in the context of a
7

motion filed pursuant to 28 U.S.C. § 2244:
[N]either the Supreme Court nor this court has ever applied the actual innocence
exception to overcome the failure to timely file under § 2244. We find the Eighth
Circuit’s analysis of this issue in Flanders v. Graves, to be persuasive.
We do not hold that actual innocence can never be relevant to a
claim that the habeas statute of limitations should be equitably
tolled. For such a claim to be viable, though, a petitioner would
have to show some action or inaction on the part of the respondent
that prevented him from discovering the relevant facts in a timely
fashion, or, at the very least, that a reasonably diligent petitioner
could not have discovered these facts in time to file a petition
within the period of limitations.
Flanders v. Graves, 299 F.3d 974, 978 (8th Cir. 2002).
Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004). The Seventh Circuit subsequently held that
“[p]risoners claiming to be innocent, like those contending that other events spoil the conviction,
must meet the statutory requirement of timely action.” Escamilla v. Jungwirth, 426 F.3d 868,
872 (7th Cir. 2005).
Petitioner has presented absolutely nothing to explain why he waited so long to file his
motion pursuant to § 2255. Petitioner has stated no extraordinary circumstances beyond his
control which prevented him from timely filing his § 2255 motion. Petitioner has alleged no
action or inaction on the part of the government that kept him from discovering the relevant
information in a timely fashion. Nor does petitioner explain how a reasonably diligent petitioner
could not have discovered the facts in time to file a petition within the period of limitations.4
Notably, petitioner did not miss the filing deadline by days or months, but more than ten (10)
years. “Under long established principles, petitioner’s lack of diligence precludes equity’s
4

In fact, as petitioner notes, his codefendant was able to successfully file such a petition within the
relevant time limitation.

8

operation.” Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005); accord Balsewicz v. Kingston, 425
F.3d 1029, 1034-35 (7th Cir. 2005). Petitioner has failed to meet the high threshold required and
has utterly failed to present any circumstances, let alone extraordinary ones, that prevented him
from timely filing his motion.
Furthermore, “[i]n order to demonstrate actual innocence in a collateral proceeding, a
petitioner must present ‘new reliable evidence that was not presented at trial’ and ‘show that it is
more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable
doubt.’” Balsewicz, 425 F.3d at 1033 (quoting Schlup v. Delo, 513 U.S. 298, 299, 327-28
(1995)). Here, petitioner has presented no new evidence of actual innocence, only arguments
based upon caselaw which could have been brought forth within the statutory limitations period.
“In Bailey, the Supreme Court narrowed the definition of ‘use’ under § 924(c)(1), holding
that ‘use’ involves the defendant’s active employment of a firearm.” Arango-Alvarez v. United
States, 134 F.3d 888, 891 (7th Cir. 1998).5 The Bailey ruling, however, did not consider the
definition of “carry,” leaving that prong untouched. Id. Additionally, the Seventh Circuit noted
that “the statute is phrased in the disjunctive or, as opposed to [defendant’s] indictment and plea
agreement which state ‘use’ and ‘carry.’ A violation of either prong is sufficient under §

5

Notably, in petitioner’s traverse (Doc. 20), he takes issue with the fact that the government cited
post-Bailey cases which were not specifically made retroactive to support its contention that petitioner’s
conviction can be sustained on the “carry” prong alone. In United States v. Baker, 78 F.3d 1241, (7th Cir.
1996), for example, the Seventh Circuit interpreted the post-Bailey meaning of “carry:” “the possession of
the firearm coupled with the affirmative act of transporting it during and in relation to a drug trafficking
crime . . . precipitates liability under § 924(c)(1); here, the act of carrying or transporting the firearm is the
‘something more’ Bailey requires.” Id. at 1247. The Seventh Circuit, in Baker, did exactly what the
petitioner challenges here – used a post-Bailey interpretation of the term “carry” to uphold a defendant’s
conviction that occurred pre-Bailey. These post-Bailey cases are precedential as to the application of
Bailey. Reliance on post-Bailey cases which interpret that decision is, therefore, entirely appropriate.

9

924(c)(1).” Id. at n.2.
“[S]omething more than possession of the firearm in relation to the drug trafficking crime
[is] required to demonstrate carrying.” United States v. James, 464 F.3d 699, 705 (7th Cir. 2006)
(citing United States v. Baker, 78 F.3d 1241, 1247 (7th Cir. 1996)). Circumstantial evidence that
“a defendant . . . transports a gun on his person or within his reach, available for immediate use,
during and in relation to a drug-trafficking crime meets the definition.” James, 464 F.3d at 705
(citing Baker, 78 F.3d at 1241).
Unlike the circumstances surrounding his co-defendant’s petition, the government has not
conceded that petitioner was actually innocent of the § 924(c) charge. The government does,
however, concede that the evidence presented at petitioner’s criminal trial would not meet the
Bailey definition of “use.” It asserts, however, that the evidence would still meet the definition of
“carry,” and his conviction is still valid on this basis. The government directs the Court’s
attention to the trial record, in which evidence was produced that petitioner admitted to law
enforcement that “he kept a .380 caliber handgun, which he had obtained from one of his drug
suppliers, and he kept that for protection during his drug business and kept it close while he was
selling.” (Doc. 12-1 at 21). Notably, the trial testimony from which this information came was
based upon a signed statement that petitioner made to law enforcement at the time of his arrest.
(Doc. 12-1 at 19-21).
This statement provided the required “nexus” between the firearms and the drug
transactions. Petitioner admitted that he obtained the gun from a drug supplier, a factor that is
certainly relevant to whether a firearm was used in connection with his drug business. He further
admitted that he kept it close and used it for protection while selling drugs. These admissions
10

show that petitioner did not merely innocently possess firearms, but that he specifically obtained
and used firearms in connection with his drug business, which meets the “carry” prong of §
924(c). Notably, “[c]ourts do not allow prisoners to start with clean slates after their convictions
and argue ‘actual innocence’ as if the trial had not occurred.” Escamilla, 426 F.3d at 871.
Moreover, the government, quoting trial transcripts, asserts that on the very first day of
trial, the Court instructed the jury as to the elements of Count 3 of the superceding indictment,
specifically stating:
To sustain the charge of using or carrying a firearm during and in relation to a drug
trafficking crime as charged in Count 3 of the superseding indictment, the
Government must prove the following beyond a reasonable doubt: First, that the
defendant did use or carry a firearm; second, that the defendant did so during and
in relation to a drug trafficking crime.
(Doc. 19 at 2, quoting Trial transcripts I at 8) (emphasis added). The government also provides
transcripts proving that, on the last day of trial, the Court Clerk properly reported that the jury
found the petitioner guilty of “using or carrying a firearm during and relation to a drug trafficking
crime as charged in Count 3 of the Superseding Indictment.” (Doc.12-1 at 22) (emphasis added).
The government concedes that the superseding indictment uses the language “use and carry,” but
asserts that there is no significant legal difference between that clause and “use or carry.”
The Seventh Circuit has specifically addressed this issue:
In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610
(1970), the Supreme Court explained that “when a jury returns a guilty verdict on
an indictment charging several acts in the conjunctive . . . , the verdict stands if the
evidence is sufficient with respect to any one of the acts charged.” Id. at 420, 90
S.Ct. 642. We picked up on this language in United States v. Bond, 231 F.3d 1075
(7th Cir. 2000), and noted that there is no need to reverse a conviction that is
supported by one of several charged acts so long as the alternative bases for
conviction are neither unconstitutional nor illegal. Id. at 1078. The government
urges us to apply this well-established rule here, and offers United States v.
11

LeDonne, 21 F.3d 1418 (7th Cir.1994) as additional support. In LeDonne we
explained that “where a statute defines two or more ways in which an offense may
be committed, all may be alleged in the conjunctive in one count . . . . And proof of
any one of those acts conjunctively charged may support a conviction.” Id. at 1427
(citations omitted). The Supreme Court's decision in Turner and our later decisions
in Bond and LeDonne foreclose the Officers' argument that the government either
had to amend the indictment against them to charge using or carrying a firearm, or
prove that each individual both used and carried a firearm at trial.
United States v. Moore, 363 F.3d 631, 640 (7th Cir. 2004) (reversed on other grounds at 543
U.S. 1100 (2005)). In accordance with this ruling, petitioner’s argument that he was charged
with a “non-existent” offense thereby stripping the Court of subject-matter jurisdiction, is
meritless. Furthermore, the jury was specifically instructed that the government must prove
beyond a reasonable doubt that the defendant used or carried a firearm, further dispelling any
potential issue with the language of the superceding indictment.
Finally, petitioner’s reliance on Reyes-Requena is misplaced. The Fifth Circuit, in ReyesRequena, determined that “§ 2241 may be utilized by a federal prisoner to challenge the legality of
his or her conviction or sentence if he . . . can satisfy the mandates of the so-called § 2255
‘savings clause.’” 243 F.3d at 901. To utilize the “savings clause,” the petitioner must
demonstrate that § 2255 cannot provide an adequate or effective remedy. Id. The Seventh
Circuit created a test for applicability of the savings clause in the context of Bailey claims in In re
Davenport, 147 F.3d 605 (7th Cir. 1998), a case involving successive § 2255 motions:
“[a] federal prisoner should be permitted to seek habeas corpus only if he had no reasonable
opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or
sentence because the law changed after his first 2255 motion.” Id. at 611. The Court added three
qualifications to this statement: (1) “the change of law has to have been made retroactive by the

12

Supreme Court;” (2) “it must be a change that eludes the permission in section 2255 for
successive motions;” and (3) “‘change in law’ is not to be equated to a difference between the law
in the circuit in which the prisoner was sentenced and the law in the circuit in which he is
incarcerated.” Id. at 611-12. In Davenport, the key inquiry was whether the defendant’s claim
could, at any time, have been presented in a motion under § 2255 or in a direct appeal. Id. at 610.
“A procedure for postconviction relief can fairly be termed inadequate when it is so configured as
to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect
in his conviction as having been imprisoned for a nonexistent offense.” Id. at 611. Petitioner
clearly fails the Davenport test in that he could have brought a § 2255 petition after the Supreme
Court made Bailey retroactive, but he simply failed to do so. Petitioner had a reasonable chance
to petition for correction of the alleged error, but he did not, and therefore neither ReyesRequena, nor Davenport helps him.
This Court FINDS, therefore, that neither equitable tolling, nor the § 2255 savings clause
are applicable here, and petitioner’s motion pursuant to § 2255 is time barred.
II. Even if Petition were Timely Filed, Petitioner’s Ineffective Assistance of Counsel
Claims are Meritless
This Court has determined that petitioner’s claims are time barred. Even if the Court
could consider his ineffective assistance claims, however, these claims would fail. Petitioner
asserts that counsel was ineffective because he allegedly failed to object to the presentence report,
failed to request that the jury instruction contain language that the government must show active
employment of the firearm, failed to preserve the issue for appellate review, and failed to properly
investigate the case. These claims are bare assertions without any factual or other evidentiary

13

support (Doc. 1-1 at 4). Petitioner fails to support these claims with any facts or evidence
whatsoever. The Court need not proceed to further investigate these claims because petitioner
did nothing more than make “mere unsupported assertions.” See Lafuente v. United States, 617
F.3d 944, 946 (7th Cir. 2010); Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006).
Furthermore, to the extent that petitioner claims that his attorney failed to request a jury
instruction that used the “active employment of a firearm” language that only became applicable
after the conclusion of his case, these claims fail. “The Sixth Amendment does not require
counsel to forecast changes or advances in the law, or to press meritless arguments before a
court.” Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993).
Accordingly, the Court DENIES petitioner’s motion to vacate, set aside or correct
sentence, and DISMISSES the petition with prejudice, on all grounds raised.
III.

Hearing
In his initial petition, petitioner requests a hearing. Because summary dismissal of a §

2255 motion is appropriate when the motion and the files and records of the case conclusively
demonstrate that the petitioner is not entitled to relief, this Court FINDS that it is unnecessary to
hold a hearing, and petitioner’s request is DENIED. 28 U.S.C. § 2255(b) (2010), see also,
Politte v. United States, 852 F.2d 924, 931 (7th Cir. 1988).
IV.

Certificate of Appealability
Should Petitioner desire to appeal this Court’s ruling dismissing his motion under 28

U.S.C. § 2255, he must first secure a certificate of appealability, either from this Court or from
the Court of Appeals. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to 28 U.S.C.
§ 2253, a certificate of appealability may issue “only if the applicant has made a substantial
14

showing of the denial of a constitutional right.”
This requirement has been interpreted by the Supreme Court to mean that an applicant
must show that “reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner need not
show that his appeal will succeed, Miller-El v. Cockrell, 537 U.S. 322, 337 (2003), but Petitioner
must show “something more than the absence of frivolity” or the existence of mere “good faith”
on his part. Id. at 338 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). If the district
court denies the request, a petitioner may request that a circuit judge issue the certificate. FED. R.
APP. P. 22(b)(1)-(3).
For the reasons detailed above, the Court has determined that petitioner has not stated any
grounds for relief under § 2255. Furthermore, the Court finds no basis for a determination that its
decision is debatable or incorrect. Thus, Petitioner has not made “a substantial showing of the
denial of a constitutional right.”
IT IS THEREFORE ORDERED that a certificate of appealability shall NOT be issued.
CONCLUSION
The Court DENIES petitioner’s motion to vacate, set aside or correct sentence on all
grounds raised, and DISMISSES the petition with prejudice. Each party shall bear its own costs.
A Certificate of Appealability shall NOT be issued.
The Clerk of the Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED
DATE: September 25, 2012
/s/ WILLIAM D. STIEHL
DISTRICT JUDGE
15