Garrett v. United States of America

Filing 2

MEMORANDUM AND ORDER, The Court DISMISSES Garretts motion (Doc. 1 ) for lack of jurisdiction and DIRECTS the Clerk of Court to enter judgment accordingly. Signed by Judge J. Phil Gilbert on 3/27/2014. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRYAN SCOTT GARRETT,
Petitioner,
vs.

Case No. 14-cv-383-JPG

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Bryan Scott Garrett’s motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Garrett argues his sentence, which
was enhanced pursuant to 21 U.S.C. § 851 for a prior felony drug conviction, was improper
because a jury did not find the fact of his prior conviction beyond a reasonable doubt. He relies
on Alleyne v. United States, 133 S. Ct. 2151 (2013).
This is not Garrett’s first § 2255 motion. See Garrett v. United States, No. 06-cv-266JPG; No. 12-cv-859-JPG; 13-cv-1241-JPG. In order for this Court to consider a successive
petition, the Seventh Circuit Court of Appeals must certify the successive petition pursuant to 28
U.S.C. § 2255, ¶ 8. Curry v. United States, 507 F.3d 603, 604 (7th Cir. 2007), cert. denied, 128
S. Ct. 2925 (2008); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). The Court of
Appeals has not made such a certification. Therefore, the Court does not have jurisdiction to
consider Garrett’s motion (Doc. 1) and dismisses it for lack of jurisdiction.
Even if this Court did have jurisdiction, it would deny Garrett’s motion. Alleyne
extended the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), finding that any fact that
increases a mandatory minimum must be found by a jury beyond a reasonable doubt. Alleyne,

133 S. Ct. at 2158. It did not, however, overrule Almendarez-Torres’ rule that the fact of a prior
conviction need not be alleged in the indictment and found by a jury beyond a reasonable doubt.
United States v. Boyce, 742 F.3d 792, 799 (7th Cir. 2014). As such, Garrett’s argument has no
merit.
In conclusion, the Court DISMISSES Garrett’s motion (Doc. 1) for lack of jurisdiction
and DIRECTS the Clerk of Court to enter judgment accordingly.

IT IS SO ORDERED.
DATED: March 27, 2014
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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