Newbern v. USA

Filing 24

ORDER DISMISSING CASE, denying 1 28 U.S.C. Section 2255 petition and granting 20 MOTION to Withdraw as Attorney filed by Jamell C. Newbern. Further, the Court DECLINES to issue a certificate of appealability. The Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 6/30/17. (lmp)

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

Case No. 15-cv-1059-DRH

UNITED STATES OF AMERICA
Respondent.
ORDER
HERNDON, District Judge:

On September 24, 2015, Petitioner Jamell C. Newbern filed a motion to vacate
his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). In said petition, Newbern
challenges his status as a career offender based upon Johnson v. United States, 135
S. Ct. 2551, 192 L. Ed. 2d 569 (2015). That same day, after reviewing the pleadings,
and pursuant to Administrative Order 176, the Court referred the case to the
Federal Public Defender and directed the government to file a response (Doc. 2).
Thereafter, the Federal Public Defender moved to stay this case pending a decision
by the United States Supreme Court in Beckles v. United States, 616 Fed.Appx 415
(11th Cir. 2015), cert. granted, --- U.S. ---, 136 S.Ct. 2510, ---L.E.2d --- (2016) (Doc.
9) The Court entered a stay on December 1, 2015 (Doc. 10).
On March 6, 2017, the Supreme Court issued its decision in Beckles v. United

States, 137 S.Ct. 866 (2017) (holding broadly that advisory sentencing guidelines
are not subject to vagueness challenges under the Due Process Clause, and thus, the
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reasoning of Johnson does not extend to § 4B1.2’s residual clause). In light of

Beckles, the government filed a notice indicating that Beckles is dispositive of
petitioner’s request for relief (Doc. 16). Thereafter, the Court directed the petitioner
to show cause why the Court should not deny his § 2255 petition and dismiss the
case (Doc. 17). In response, to the Court’s show cause order, the Federal Public
Defender moved to withdraw as counsel stating that “[p]etitioner’s claims rely on an
argument that § 4B1.2(a)(2)’s residual clause no longer applies to his case based
upon Johnson. The Beckles decision forecloses any colorable claim for relief based
upon Johnson.” (Doc. 20). The Court, again, entered a show cause order directing
petitioner to show cause—no later than May 18, 2017— why the undersigned should
not grant the Assistant FPD's motion to withdraw and deny Defendant's pro se §
2255 petition (Doc. 22). Newbern filed his responses to both show cause orders
(Docs. 21& 23), in which he attempts to allege a second ground for relief.
Clearly, Beckles precludes Newbern’s § 2255 petition and there is no basis to
vacate or correct Newbern’s sentence. Newbern attempts to argue that his due
process claim prevents dismissal based on United States v. Tucker, 404 U.S. 443
(1972) (Doc. 22). However, the Court finds that he does not have a valid reason to
avoid dismissal. In fact, upon review of Newbern’s remaining argument, the Court
finds that the argument fails, given that the issue was previously decided on appeal.

Newbern previously appealed his criminal conviction, and in denying his
appeal, the Seventh Circuit stated:
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“Newbern's Illinois conviction for reckless discharge of a firearm
involved
conduct
that
presented a serious potential risk of
physical injury to another within the meaning of § 4Bl.l(a)(2). The
district court properly counted it as a prior crime of violence. The
judgment of the district court is AFFIRMED.”
(United States v. Newbern, 05-cr-30071-DRH, (Doc. 37)). Newbern also previously
filed a 28 U.S.C. § 2255 in 2010, in which he raised a similar claim to challenge his
career offender classification, which the Court denied as untimely. In that petition,
Newbern alleged that his prior state reckless discharge of a firearm conviction was
erroneously classified as a crime of violence, which resulted in his classification as a
career offender (Newbern v. United States, 10-cv-64-DRH, (Doc. 1)). He, once again,
attempts to allege the same claim in the pending petition, but this time his claim is
based on Tucker, a Supreme Court case from 1972.
Unless a movant demonstrates changed circumstances in fact or law, he may
not raise issues already decided or waived on direct appeal. Olmstead v. United

States, 55 F.3d 316, 319 (7th Cir. 1995). As mentioned above, Newbern has twice
challenged the Court’s reliance on his state reckless discharge of a firearm
conviction in his classification as a career offender, and twice been denied relief.
(Newbern v. United States, 10-cv-64-DRH, (Doc. 1). His argument once again fails as
the issue was previously decided on appeal, and no changed circumstances in fact or
law were demonstrated. Therefore, Newbern’s § 2255 petition is denied.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, this Court
denies a certificate of appealability in this case. “A certificate of appealability should
issue only when the prisoner shows both “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
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right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling,” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This
Ccourt concludes that jurists of reason would not find it debatable whether
petitioner’s motion states a valid claim of the denial of a constitutional right and also
concludes that jurists of reason would not find it debatable whether this Court
correctly dismissed with petitioner’s motion based on Beckles.
Accordingly, the Court DENIES and DISMISSES with prejudice Newbern’s
28 U.S.C. § 2255 petition (Doc. 1) and GRANTS FPD’s motion to withdraw (Doc.
20). Further, the Court DECLINES to issue a certificate of appealability. The Court
DIRECTS the Clerk of the Court to enter judgment in favor of the United States of
America and against Jamell C. Newbern.
IT IS SO ORDERED.
Signed this 30th day of June, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.06.30
11:03:58 -05'00'
United States District Judge

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