Newbern v. United States of America

Filing 16

ORDER DISMISSING CASE with prejudice for being untimely. The motion for hearing is denied as moot. No certificate of appealability shall be issued in this case. The Clerk is directed to enter judgment in this case. Signed by Chief Judge David R. Herndon on 12/26/2012. (msdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMELL C. NEWBERN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 10-64-DRH

ORDER
HERNDON, Chief Judge:
Before the Court is movant Jamell C. Newbern’s motion under 28 U.S.C. §
2255 to vacate, set aside, or correct sentence (Doc. 1). Movant contends that
pursuant to Chambers v. United States, 129 S. Ct. 687 (2009), and Begay v. United
States, 553 U.S. 137 (2008), his prior state reckless discharge of a firearm
conviction was erroneously classified as a crime of violence which resulted in him
being classified as a career offender, and that therefore, he should be resentenced
without the career offender enhancement. For the reasons that follow, the motion
is dismissed as untimely.
I. Background
In April 2005, movant was charged by indictment with possession with intent
to distribute a mixture or substance containing cocaine base, 21 U.S.C. § 841(a)(1).
On August 3, 2005, movant plead guilty to that charge, and on December 7, 2005,

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he was sentenced as a career offender to 300 months’ imprisonment. At the time of
sentencing, movant was classified as a career offender under U.S.S.G. § 4B1.1 , the
offense guideline applicable to a defendant convicted of committing a crime of
violence or a controlled-substance offense after incurring two prior convictions for
crimes of violence or controlled-substance offenses. U.S.S.G. § 4B1.1(a), (b). The
Court found that two of movant’s convictions qualified as crimes of violence, i.e.,
reckless discharge of a firearm, 720 ILL. COMP. STAT. 5/24-1.5, which resulted in a
man being shot in the leg, and aggravated battery ,720 ILL. COMP. STAT. 5/12-4(b)(6),
after movant attempted to disarm a police officer. Accordingly, the Court found
movant to be a career offender with a total offense level of 34 and a criminal history
category VI, resulting in an imprisonment range of 262 to 327 months. Applying the
guidelines as advisory and considering the factors in 18 U.S.C. § 3353(a), the court
sentenced plaintiff to 300 months’ imprisonment and a ten-year term of supervised
release. Movant objected to his classification as a career offender on the basis that
his conviction for reckless discharge of a firearm was considered a crime of violence.
With regard to that objection, the Court stated:
While the defendant is labeled a career criminal for one aspect of
the Court’s consideration, that being the advisory Sentencing
Guidelines, even before considering his career criminal status, and
again, that for purposes of the advisory Guidelines, this defendant’s
Criminal History Category was already a VI, the highest possible level.
His criminal history is characterized with two weapons charges,
another where he tried to take a police officer’s weapon; and when that
failed he struck the officer about the head with his fist. Defendant has
another conviction for obstructing and resisting that involved physically
pushing and striking a police officer. He has two other drug
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convictions. He’s 30 years old now, and all of this and more started at
age 22. So, it seems to this Court that the label ‘career criminal’ is
simply a description of what he does, not just a calculation under the
Guidelines.
On December 21, 2005, movant filed a notice of appeal from that judgment,
contending that reckless discharge of a firearm in violation of Illinois law was not a
crime of violence. On March 13, 2007, the Seventh Circuit Court of Appeals entered
an opinion upholding that judgment, finding that reckless discharge of a firearm in
violation of Illinois was a crime of violence. See United States v. Newbern, 479 F.3d
506, 507 (7th Cir. 2007).
On January 27, 2010, movant filed his § 2255 motion, contending that
pursuant to Chambers and Begay his prior reckless discharge of a firearm
conviction was erroneously classified as a crime of violence which resulted in him
being classified as a career offender. After examining the motion, the Court ordered
the government to respond to movant’s motion (Doc. 2). On August 20, 2010, the
government filed its response to movant’s motion (Doc. 5), whereby it alleged that
movant’s motion was untimely based upon the fact that it was Begay that initially
recognized the right claimed by movant and that therefore his motion filed on
January 12, 2010, was untimely as Begay was decided on April 16, 2008.
On November 29, 2010, movant filed a memorandum in support his § 2255
motion (Doc. 9). In that memorandum, movant asserts that while the government
acknowledges that movant would be entitled to relief from his illegal sentence, the
government would still have him serve an additional five years because movant failed

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to recognize within one year that Begay changed the law in his favor. Movant
contends that because he was never advised by his federal public defender, or anyone
else for that matter, “equitable tolling” should apply to his case. Further, he argues
that because there has been a substantial change in the law as to what circumstances
qualify as “actual innocence” and/or a “miscarriage of justice,” jurisdiction should be
allowed under either 28 U.S.C. §§ 2241 or 2255 despite a late filed petition. Lastly,
movant directed the Court to Narvaez v. United States, 674 F.3d 621 (7th Cir.
2011), a case which was pending before the Seventh Circuit at that time, and
suggested that the Court defer any further action until that opinion was issued. That
opinion was decided on June 3, 2011, but an amended opinion was issued on
December 6, 2011.
On December 28, 2011, movant filed additional authority in support his
motion and an additional request for a sentence reduction pursuant to 18 U.S.C. §
3582(c)(2) (Doc. 10). Movant asserted that based upon Narvaez, he was clearly
entitled to the relief he requested. Additionally, movant argued that he may also be
entitled to an additional sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 750 to the Sentencing Guidelines.

On January 23, 2012, the

government filed its supplemental response to movant’s motion (Doc. 14), contending
that movant’s original filed petition was untimely, that “actual innocence” did not
provide an exception to the time limits proscribed by § 2255, that equitable tolling
should not apply, that a “miscarriage or justice” or due process violation has not
occurred, and that Narvaez was distinguishable. On September 25, 2012, movant
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filed a motion for hearing (Doc. 15). For the reasons that follow, movant’s motion
is dismissed as being untimely. His motion for hearing (Doc. 15) is denied as moot.
II. Analysis
A motion by a federal prisoner for postconviction relief under 28 U.S.C. § 2255
is subject to a one-year time limitation that runs from one of four specified dates,
generally the date on which the conviction becomes final. Clay v. United States, 537
U.S. 522, 524-25 (2003); see 28 U.S.C. § 2255. More specifically, the one year
limitation period runs from the latest of the following dates:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by the
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 exercise of due diligence.
28 U.S.C. § 2255(f).
Section 2255's period of limitation is not jurisdictional but is instead a
procedural statute of limitations subject to equitable tolling. United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (citing Taliani v. Chrans, 189 F.3d
597 (7th Cir. 1999)). “Even so, equitable tolling is granted sparingly.” Marcello, 212
F.3d at 1010 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).
“Extraordinary circumstances far beyond the litigant’s control must have prevented
timely filing.” Marello, 212 F.3d at 1010 (citing Hoosier Bancorp of Ind., Inc. v.
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Rasmussen, 90 F.3d 180, 183 (7th Cir. 1996)); see also Tucker v. Kingston, 538
F.3d 732, 734 (7th Cir. 2008) (finding that equitable tolling may apply to cases on
collateral review but only when it does not conflict with the strictures of 28 U.S.C. §
2244(d) and noting that the Seventh Circuit has yet to identify a petitioner whose
circumstances warrant it). Indeed, besides showing extraordinary circumstances
outside the movant’s control through no fault of movant’s own, the movant must also
show that he has diligently pursued his claim, despite the obstacle. Tucker, 538
F.3d at 734 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
The one year limitation period relevant here refers to “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). In this case, movant argues that his
claim filed on January 12, 2010, was filed within one year of the date on which the
right asserted was initially recognized by the Supreme Court, relying on Chambers
which was decided on January 13, 2009, and not Begay which was decided on April
16, 2008. Nevertheless, even if movant’s petition was untimely, he contends that the
Court should exercise its jurisdiction and reduce his sentence based on a number of
theories.
On April 16, 2008, the Supreme Court held in Begay that New Mexico’s felony
offense of driving under the influence of alcohol under New Mexico law was not a
“violent felony” under the Armed Career Criminal Act. 553 U.S. at 139. On January
13, 2009, the Supreme Court held in Chambers that a “failure to report” for penal
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confinement was not a “violent felony” within the terms of the Armed Career Criminal
Act.

555 U.S. at 123.

On August 17, 2009, the Seventh Circuit specifically

considered in United States v. Gear, 577 F.3d 810 (7th Cir. 2009), whether the
offense of reckless discharge of a firearm in violation of 720 ILCS 5/24-1.5(a), the
offense that the Court used to classify movant as a career offender, was a “violent
felony” for purposes of finding career offender status under § 4B1.1. Ultimately, the
court concluded “that conviction under 720 ILCS 5/24-1.5(a) need not denote the
sort of purposeful, aggressive, and violent conduct that Begay requires for
classification as a violent felony under the residual category.” Gear, 577 F.3d at 813.
On June 3, 2011, the Seventh Circuit decided Narvaez, and on December 6,
2011, an amended opinion was issued. In Narvaez, the defendant plead guilty to
bank robbery in 2003 and was sentenced as a career offender pursuant to § 4B1.1
of the Sentencing Guidelines based on prior escape convictions involving failure to
return to confinement, violations of Wisconsin Statute section 946.42(3)(a). At the
time of sentencing, the defendant’s felony escape convictions constituted “crimes of
violence” within the meaning of the career offender guideline. On April 15, 2009, the
defendant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255(a) on
the basis that imposition of the career offender status was illegal in light of the
Supreme Court’s decision in Begay and Chambers. The district court denied the
defendant’s motion on the basis that Begay and Chambers did not apply
retroactively to cases on collateral review. Nevertheless, it granted the defendant a
certificate of appealability.
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On appeal, the government conceded that Begay and Chambers decided
questions of substantive statutory construction and that they applied retroactively on
collateral review. Id. at 625. The government further conceded that the defendant’s
prior escape convictions for failure to return to confinement did not constitute crimes
of violence under the career offender guideline. Id. Despite this, the government
argued that no certificate of appealability should have been issued because the
certificate did not identify a substantial constitutional question as required by 28
U.S.C. § 2253(c)(2), and that the defendant was not entitled to relief because no
miscarriage of justice occurred. Id.
Initially, the Seventh Circuit recognized that both parties and it agreed that the
defendant’s motion under § 2255 was timely. The Seventh Circuit stated:
Section 2255(f)(3) of Title 28 provides that a motion is timely if it is
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.’ There is no dispute that the right asserted
by [the defendant]–the right not to receive an enhanced sentenced based
on an incorrect understanding of the term ‘crime of violence’– was
recognized by the Supreme Court in Begay and Chambers. [Defendant]
filed his motion within one year of both the Begay and Chambers
decisions.
Id. at 625. The Seventh Circuit then found that Begay and Chambers applied
retroactively on collateral review because “Chambers, like Begay, falls within the
class of substantive decisions that ‘prohibit[] a certain category of punishment for a
class of defendants because of their status or offense[.]’” Id. at 625-26 (quoting
O’Dell v. Neverland, 521 U.S. 151, 157 (1997) (internal quotation marks omitted)).

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Next, the Seventh Circuit addressed the government’s argument regarding the
certificate of appealability. Narvaez, 674 F.3d at 626. The certificate in that case
raised a claim that the defendant’s illegal designation as a career offender resulted
in an increase in his term of imprisonment that deprived him of liberty without due
process of law.

Id.

The Seventh Circuit found that the defendant had a

“‘constitutional right to be deprived of liberty as punishment for criminal conduct
only to the extent authorized by Congress.’” Id. at 627.
The Seventh Circuit then acknowledged that while sentencing errors are
generally not cognizable on collateral review, the defendant’s case presented “a
special and very narrow exception: A postconviction clarification in the law has
rendered the sentencing court’s decision unlawful.” Id. “More precisely, it is now
clear that [the defendant] never should have been classified as a career offender and
never should have been subjected to the enhanced punishment reserved for such
repetitive and violent offenders.”

Id.

The court then found that although the

defendant claimed he was entitled to § 2255 relief on the basis that his career
offenders status resulted in a complete miscarriage of justice and because the error
resulted in a violation of his due process rights, the Court need not reach the
defendant’s due process claim because a miscarriage of justice entitled the defendant
to relief. Id.
The Court then looked to Davis v. United States, 417 U.S. 333 (1974), and
In re Davenport, 147 F.3d 605 (7th Cir. 1998). Narvaez, 674 F.3d at 627-28. In
Davis, the Supreme Court found that the petitioner was entitled to Ҥ 2255 relief after
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a subsequent interpretation of the statute, under which he was convicted, established
that the his conviction and punishment were ‘for an act that the law does not make
criminal.’” Narvaez, 674 F.3d at 628 (quoting Davis, 417 U.S. at 346). “The
Supreme Court concluded that ‘[t]here can be no room for doubt that such a
circumstance inherently results in a complete miscarriage of justice.’” Narvaez, 674
F.3d at 628 (quoting Davis, 417 U.S. at 346) (internal quotation marks omitted).
The Court also acknowledged that in In re Davenport, it “found that the defendant
was ‘indeed being held in prison for a nonexistent crime,’ and, accordingly, he may
be entitled to collateral relief.” Narvaez, 674 F.3d at 628 (citing In re Davenport,
147 F.3d at 610).
The court then found that “[a]lthough these cases provide collateral relief when
a defendant is innocent of the underlying crime, we believe that the reasoning extends
to this case, where a postconviction Supreme Court ruling made clear that [the
defendant] was not eligible for the categorization of a violent offender wrongfully
imposed upon him.” Narvaez, 674 F.3d at 628. The court then looked to its
decision in Welch v. United States, 604 F.3d 408 (7th Cir. 2010), where it “found the
defendant’s challenge to his sentence under the ACCA ‘analogous’ to the situation in
Davis where the defendant’s punishment ‘for an act that the law does not make
criminal’ resulted in ‘a complete miscarriage of justice.’” Narvaez, 674 F.3d at 628
(quoting Welch, 604 F.3d at 413 n. 6). Finding the definition of “violent felony” under
the ACCA the same as the definition of “crime of violence” under the Sentencing
Guidelines, the court found it would be inappropriate to treat the texts differently.
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Narvaez, 674 F.3d at 628 (citing United States v. Templeton, 543 F.3d 378, 380
(7th Cir. 2008)).

Further, the court noted that “at the time of [defendant’s]

sentencing, the Guidelines were mandatory.” Narvaez, 674 F.3d at 628 (emphasis
in original). The court found that the “case therefore involves the classifying of an
individual as belonging to a subgroup of defendants, repeat violent offenders, that
traditionally has been treated very differently from other offenders.” Id. at 629. The
court concluded that “[t]o classify [the defendant] as belonging to this group and
therefore to increase, dramatically, the point of departure for his sentence is certainly
as serious as the most grievous misinformation that has been the basis for granting
habeas relief.” Id. Therefore, the court found a miscarriage of justice occurred. Id.
In response to the government’s argument that § 2255 was unwarranted
because the defendant’s sentence was within the authorized statutory maximum for
his crime, the court stated the following:
We cannot accept this argument. The fact that [the defendant’s]
sentence falls below the applicable statutory-maximum sentence is not
alone determinative of whether a miscarriage of justice has occurred.
The imposition of the career offender status branded [the defendant] as
a malefactor deserving of far greater punishment than that usually
meted out for an otherwise similarly situated individual who had
committed the same offense. It created a legal presumption that he was
to be treated differently from other offenders because he belonged in
special category reserved for the violent and incorrigible. No amount of
evidence in mitigation or extenuation could erase that branding or its
effect on his sentence. His designation as a career offender simply took
as unchallenged a premise that was not true and gave him no way of
avoiding the consequences of that designation. The sentencing court’s
misapplication of the then-mandatory § 4B1.1 career offender
categorization in [the defendant’s] case was the lodestar to its guidelines
calculation. It placed him in a very special status for the calculation of
his final sentence solely because the court ruled that he was a career
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offender and that the corresponding guidelines required such a status.
Speculation that the district court today might impose the same
sentence is not enough to overcome the fact that, at the time of the
initial sentencing, [the defendant] was sentenced based upon the
equivalent of a nonexistent offense. As the Supreme Court put it Hicks
v. Oklahoma, 447 U.S. 343, 346, 100 S. Ct. 2227, 65 L. Ed. 2d 175
(1980), to assume that the same sentence would have been imposed in
the absence of the career offender provision is “full conjecture” that
evinces in itself “an arbitrary disregard of the petitioner’s right to
liberty.” This error clearly constitutes a miscarriage of justice. The
Government is correct that [the defendant] does not have an absolute
right to a lower sentence. Nevertheless, he does have an absolute right
not to stand before the court as a career offender when the law does not
impose that label on him.
Id. at 629. Therefore, the court found that the career offender status illegally
increased the defendant’s sentence approximately five years beyond that authorized
by the statutory scheme, resulting in a miscarriage of justice.

Id. at 630.

Accordingly, the court reversed the judgment of the district court and remanded for
sentencing without the imposition of a career offender status. Id.
Here, movant’s motion was filed January 12, 2010. Thus, it was filed within
one year of Chambers, which was decided on January 13, 2009, but not timely filed
within one year of Begay, which was issued on April 16, 2008. As a result, the
government contends that movant’s § 2255 motion was untimely because it was not
filed within one year of the date on which the right asserted was “initially” recognized
by the Supreme Court in Begay. The Court agrees.
In Narvaez, the Court found that the defendant’s § 2255 motion was timely
filed because it was filed within one year of both the Begay and Chambers decisions.
Here, movant’s motion is only filed within one year of Chambers, but not Begay.

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The right movant asserts here – the right not to receive an enhanced sentence based
an incorrect understanding that reckless discharge of a firearm in violation of 720
ILCS 5/24-1.5(a) qualified as a crime of violence for purposes of career offender
status – was “initially recognized” in Begay, not Chambers.

See 28 U.S.C. §

2255(f)(3). Indeed, the Seventh Circuit in Gear, the case finding that reckless
discharge of a firearm was not a violent crime for purposes of career offender status,
relied exclusively on Begay and did not cite to Chambers in reaching its
determination. The Supreme Court in Dodd v. United States, 545 U.S. 353 (2005),
stated that the text of paragraph § 2255(f)(3) “unequivocally identifies one, and only
one, date from which the 1-year limitation period is measured: ‘the date on which the
right asserted was initially recognized by the Supreme Court.’” Id. at 357. The right
movant relies on here was initially recognized in Begay and he had one year from the
date of the decision to file his motion. Accordingly, his motion is untimely.
Nevertheless, movant contends that even if the motion is untimely, “equitable
tolling” should apply because no one advised movant “that Begay may have changed
the law retroactively on this very important issue.”

Clearly these are not

“[e]xtraordinary circumstances far beyond the litigant’s control [that] have prevent
timely filing.” Marello, 212 F.3d at 1010 (citing Rasmussen, 90 F.3d at 183)).
Movant does not have a right to be informed by someone else when the law may or
may not have changed in movant’s favor, and movant does not even attempt to argue
that there were extraordinary circumstances outside of his control through no fault
of his own for why he did not timely file his claim. Thus, equitable tolling does not
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apply.
Movant also argues that the district court should exercise its jurisdiction
because movant is actually innocent of being a career offender, that the district
court’s determination constitutes a fundamental defect that results in a complete
miscarraige of justice, and that his due process rights were violated because the
sentence was imposed on the basis of inaccurate information. The Court disagrees.
First, this Court is not aware of any cases where either the Supreme Court or
the Seventh Circuit has ever applied the actual innocence exception to overcome the
failure to timely file a § 2255 motion. See Gildon v. Brown, 384 F.3d 883, 887 (7th
Cir. 2004) (“However, neither the Supreme Court nor this court has ever applied the
actual innocence exception to overcome the failure to timely file under § 2244.”);
Escamilla v. Jungwrith, 426 F.3d 868, 871 (7th Cir. 2005) (“The legal shortcoming
is that ‘actual innocence’ is unrelated to the statutory timeliness rules.”). Further,
after United States v. Booker, 543 U.S. 220 (2005), the Guidelines are advisory, and
there was no miscarriage of justice or due process violation in this case. See Smith,
544 F.3d at 813.
Here, the statutory term of imprisonment for movant was twenty years to life.
See 21 U.S.C. §§ 841(b)(1)(A), 851. At the time of sentencing, movant’s base offense
level was calculated to be 34 because of his status as a career offender with a
criminal history category of VI resulting in a guideline range from 262 to 327 months’
imprisonment. Without career offender status, movant’s base offense level would
have been 29 with a criminal history category VI and a guideline range from 151 to
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188 months’ imprisonment. While the guideline range would have been different,
movant’s sentence was within the limits set forth by statute and this Court believes
it was within its discretion in sentencing movant to a term of 300 months’
imprisonment. Indeed, this Court noted at movant’s sentencing that being labeled
as “‘career criminal’ is simply a description of what he does, not just a calculation
under the Guidelines.”
Thus, unlike in Narvaez where “[t]he sentencing court’s misapplication of the
then-mandatory § 4B.1 career offender categorization in [that defendant’s] was the
lodestar to its guideline calculation,” 674 F.3d at 629, the career offender
categorization in this was not mandatory but rather was merely advisory. Further,
unlike in Narvaez, there is no speculation here that the district court might impose
the same sentence in the absence of the career offender provision because this Court
affirmatively states that it would impose the same sentence. Thus, even if movant’s
§ 2255 was timely filed and his argument had merit, any remand would be futile
because the same sentence would be imposed.
As to movant’s request that this matter be referred to the United States
Probation Office for an assessment as to whether, and to what extent, his base
offense level should be reduced pursuant to 18 U.S.C. § 3582(C)(2), the Court finds
in light of the fact that Newburn will not be resentenced the Fair Sentencing Act does
not require that his sentence be retroactively reduced. As for the Court exercising its
discretion to reduce its sentence, as aforementioned there is no question that this
Court imposed the sentence it believed was just and reasonable under the
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circumstances, particularly in light of the Newburn’s criminal history, and the Court
will not reduce his sentence now pursuant to 18 U.S.C. § 3582(C)(2).
Where a district denies a habeas petition on procedural grounds, the court
should issue a certificate of appealability only if (1) jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right, and (2) jurists of reason would find it debatable whether the district court was
correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 485 (7th Cir.
2000). Here, the Court finds that reasonable jurists could not debate that the
petition was untimely. Therefore, the Court declines to certify any issues for review
pursuant to 28 U.S.C. § 2253(c).
III. Conclusion
For the reasons stated above, movant’s § 2255 motion (Doc. 1) is
dismissed with prejudice for being untimely. The motion for hearing is denied as
moot. No certificate of appealability shall be issued in this case. The Clerk is
directed to enter judgment in this case.
IT IS SO ORDERED.
Signed this 26th day of December, 2012.

Digitally signed
by David R.
Herndon
Date: 2012.12.26
11:11:25 -06'00'

Chief Judge
United States District Court

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