Fletcher v. USA

Filing 7

MEMORANDUM AND ORDER. The Court Dismisses Grounds One, Two and Three of Fletcher's 2255 motion. The Court Orders the Government to respond to Fletcher's Rule 35(b) allegations, construed as Ground Four. Signed by Judge J. Phil Gilbert on 1/31/13. (bkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EDWARD L. FLETCHER, JR.,
Petitioner,
vs.

Case No. 11-cv-343-JPG

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Edward L. Fletcher, Jr.’s motion to
vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Government
filed its response to the motion (Doc. 6).
1. Facts
On January 21, 2010, Fletcher entered a guilty plea to one count of possession with intent
to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). See United States v. Fletcher,
Case No. 09-cr-40043, Doc. 40. The written plea agreement included a waiver of Fletcher’s
rights to appeal and collaterally attack his sentenced (Doc. 34, pp. 9-11 in criminal case). The
plea agreement, however, does provide that his appellate and collateral attack waiver shall not
apply to changes in law that are declared retroactive or “appeals based upon Sentencing
Guideline amendments which are made retroactive by the United States Sentencing
Commission.” Doc. 34, p. 10 in criminal case.
On April 30, 2010, the undersigned judge sentenced Fletcher to 262 months
imprisonment, eight years supervised release, a $100 special assessment, and a $200 fine (Doc.
40 in criminal case). Fletcher did not file a direct appeal, nor did he apply for a writ of certiorari

to the Supreme Court of the United States. However, a portion of his instant § 2255 motion was
construed as a motion for retroactive application of the new crack cocaine sentencing guidelines
on November 17, 2011, and that motion is still pending before this Court. (Doc. 45 in criminal
case).
The instant motion was timely filed on April 25, 2011, alleging Fletcher is entitled to
relief (1) under the Fair Sentencing Act of 2010; (2) under the new “recency” amendment; (3)
pursuant to Amendment 750 of the United States Sentencing Guidelines; and (4) based on the
Government’s failure to file a Rule 35(b) motion as a result of his substantial assistance. The
Court ordered the Government to respond to Fletcher’s motion. The Court will address
Fletcher’s grounds for relief in turn.
2. Analysis
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However,
“[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt
v. United States, 83 F.3d 812, 816 (7th Cir. 1996). “Relief under § 2255 is available only for
errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental
defect which inherently results in a complete miscarriage of justice.” Kelly v. United States, 29
F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion
without an evidentiary hearing if “the motion and the files and records of the case conclusively
demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Sandoval v.
United States, 574 F.3d 847, 850 (7th Cir. 2009).

2 

a. Crack Reduction Arguments in Grounds One and Three
Grounds One and Three of Fletcher’s § 2255 motion include arguments that he is entitled
to a reduced sentence based on recent changes in crack sentencing. Because Fletcher has
appointed counsel to represent him in his criminal case with regard to his crack reduction
motion, the Court dismisses Grounds One and Three of Fletcher’s § 2255 motion.
b. “Recency” Amendment
Next, Fletcher argues that the new “recency” amendment entitls him to a two-point
reduction of his criminal history points. Points added under section § 4A1.1(e) of the United
States Sentencing Guidelines are referred to as “recency” points and add points to a defendant’s
criminal history depending on the number and recency of previous sentences. See U.S.S.G.
§ 4A1.1(e). On November 1, 2010, Congress passed Amendment 742 that eliminates these
“recency” points. See Ortiz v. Cross, No. 12-cv-317-DRH, 2012 WL 3646043, at *1 (S.D. Ill.
Aug. 23, 2012). Title 18 U.S.C. § 3582(c) provides that a Court may reduce a sentence where a
defendant was sentenced “based on a sentencing range that has been subsequently lowered . . . if
such a reduction is consistent with applicable policy statements issued by the Sentencing
Guidelines.” 18 U.S.C. § 3582(c). Section 1B1.10 of the USSG, the relevant policy statement,
identifies amendments that are authorized for retroactive application under 18 U.S.C. § 3582(c).
Amendment 742 is not listed as eligible for retroactive application. Accordingly, Amendment
742 does not impact Fletcher’s sentence, and the Court dismisses Ground Two of Fletcher’s
§ 2255 motion.
c. Rule 35(b)
Fletcher’s § 2255 motion further alleges the Government inappropriately failed to file a
Rule 35(b) motion for reduction of Fletcher’s sentence. The Government was ordered to respond

3 

to that allegation; however, the Government filed no such response. The Court also notes that
Fletcher filed a motion to compel the Government to file a Rule 35(b) motion in his criminal
case. See United States v. Fletcher, Case No. 09-cr-40043, Doc. 47. The Court orders the
Government to respond to Fletcher’s Rule 35(b) allegations within this § 2255 case.
3. Conclusion
For the foregoing reasons, the Court DISMISSES Grounds One, Two, and Three of
Fletcher’s § 2255 motion. The Court ORDERS the Government to respond to Fletcher’s Rule
35(b) allegations, construed as Ground Four by this Court, by February 27, 2013. The
Government shall, as part of its response, attach all relevant portions of the record. Fletcher may
file a reply brief (no longer than 5 pages) by March 13, 2013. If review of the briefs indicates
that an evidentiary hearing is warranted, the court will set the hearing by separate notice and, if
Petitioner qualifies under 18 U.S.C. § 3006A, appoint counsel to represent him at the hearing.

IT IS SO ORDERED.
DATED: January 31, 2013

s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

4