Newbern v. United States of America

Filing 2

MEMORANDUM AND ORDER Directing the Government to respond to Petitioner's Section 2255 motion. Signed by Chief Judge David R. Herndon on 6/24/2010. (jwt)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS JAMELL C. NEWBERN, Petitioner/Defendant, vs. UNITED STATES of AMERICA , Respondent/Plaintiff. ) ) ) ) ) ) ) ) )

CIVIL NO. 10-cv-64-DRH CRIMINAL NO. 05-cr-30071

MEMORANDUM AND ORDER HERNDON, Chief Judge: This matter is before the Court on Petitioner's motion for relief pursuant to 28 U.S.C. § 2255 Petitioner pleaded guilty, without benefit of a written plea agreement, to one count of possessing with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). On December 8, 2005, Petitioner was sentenced as a career offender under U.S.S.G. § 4B1.1 to 300 months imprisonment after this Court found that two of Petitioner's prior convictions were for crimes of violence. Petitioner filed a direct appeal concerning his sentence, but his sentence was affirmed by the Seventh Circuit Court of Appeals. United States v. Newbern, No. 05-4709 (7th Cir., affirming district court March 13, 2007). It appears that Petitioner did not seek a petition for a writ of certiorari from the Supreme Court of the United States. In his § 2255 motion, Petitioner raises only one ground for relief: that his sentence should not have been enhanced for being a "career offender" under U.S.S.G. § 4B1.1 because one of his prior convictions no longer qualifies as a "crime of violence" in light of the Supreme

Court's decision in Chambers v. United States, 129 S.Ct. 687 (2009).1 Petitioner acknowledges that his § 2255 motion would be untimely under § 2255(f)(1), but argues that his motion falls within § 2255(f)(3) which provides that the one-year period of limitations runs from " the date on which the right asserted was initially recognized by the Supreme Court . . . and made retroactively applicable to cases on collateral review." In support of his claim that the right in Chambers has been made retroactive to cases on collateral review, Petitioner cites United States v. Shipp, 589 F.3d 1084, 1091 (10th Cir. 2009). The Court ORDERS the Government to file a response to Petitioner's motion within THIRTY (30) DAYS of the date of this Order. The Government shall, as part of its response, attach all relevant portions of the record. IT IS SO ORDERED. DATED: June 24, 2010.

/s/ DavidRHerndon DISTRICT JUDGE

In Chambers the Court was examining the language in the Armed Career Criminal Act, 18 U.S.C. § 924(e) and not the language in the sentencing guidelines relating to career offender status. The wording in § 4B1.2 of the sentencing guidelines concerning "crime of violence," however, is the same as that in § 924(e). 2

1