Alexander v. USA

Filing 12

ORDER GRANTING Motion to Withdraw as Attorney (Doc. 5 ); Petitioner's Motion for Relief pursuant to 28 U.S.C. § 2255 (Doc. 1 ) is DENIED; and this action is DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Staci M. Yandle on 4/7/2020. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEVON ALEXANDER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 16-cv-1076-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Petitioner Devon Alexander moves to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255 based upon the Supreme Court’s decision in Johnson v. United States, 135 S.Ct.
2251 (2015) (Doc. 1). The Court appointed the Federal Public Defender’s Office to represent
Alexander (Doc. 3) and Assistant Federal Public Defender Todd M. Schultz entered his appearance
as counsel of record (Doc. 4).
Now pending before the Court is Schultz's Motion to Withdraw in which he asserts that
Alexander has no meritorious basis for obtaining relief under Johnson (Doc. 5). The Government
responded and agrees Schultz’s Motion should be granted (Docs. 6, 7). Alexander also filed a
Response (Doc. 9). For the following reasons, the Motion to Withdraw is GRANTED and
Alexander’s § 2255 Motion is DISMISSED with prejudice.
Factual and Procedural Background
Petitioner Devon Alexander was charged in a five-count Indictment with one count of
interference with commerce by violence, possession of a firearm in furtherance of a crime of
violence, being a felon in possession of a firearm, possession of a firearm with an obliterated serial
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number, and making a false statement (see Case No. 10-CR-30243, Doc. 13). Alexander entered
a guilty plea on April 16, 2012 (Id. Doc. 117).
On July 19, 2012, the United States Probation Office filed a First Revision of the
Presentence Investigation Report (“PSR”) (Id. Doc. 117). According to the PSR, the Guidelines
range for imprisonment was calculated to be 70-87 months. However, as there was a statutory
maximum term of imprisonment of 60 months on Counts 5 and 6, the effective Guidelines range
for those Counts was 60 months, pursuant to U.S.S.G. § 5G1.1(c)(1). As to Count 2, the statutory
term of imprisonment was 84 months, to be imposed consecutively to any other term of
imprisonment, pursuant to U.S.S.G. § 5G1.2(a) (Id.)
On July 27, 2012, based on its consideration of the 18 U.S.C. §3553(a) factors and the
information contained in the PSR, including Alexander’s criminal history, the Court sentenced
Alexander within the advisory Guidelines range: 60 months on Counts 1,3,5,6 to be served
concurrently, and 84 months on Count 2 to be served consecutively, for a total term of 144 months
imprisonment (Id. Doc. 121). Alexander was also sentenced to 3 years of supervised release,
ordered to pay restitution of $1,000.00 and a $500.00 special assessment (Id.). Judgment was
entered on July 30, 2012 (Crim. Doc. 121). Alexander appealed his sentence which was affirmed
by the Seventh Circuit Court of Appeals.
Discussion
Relief under 28 U.S.C. § 2255 is limited. Unlike a direct appeal in which a defendant may
complain of nearly any error, § 2255 may be used only to correct errors that vitiate the sentencing
court’s jurisdiction or are otherwise of constitutional magnitude. Blake v. United States, 723 F.3d
870, 878 (7th Cir. 2013). “Pursuant to § 2255, the district court has discretion to deny an
evidentiary hearing where the motion, files, and records of the case conclusively show that the

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prisoner is entitled to no relief” Id. at 641-642 (citing United States v. Kovic, 830 F.2d 680 (7th
Cir. 1987). However, an evidentiary hearing is warranted if “the petitioner alleges facts that, if
proven, would entitle him to relief.” Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006)
(quoting Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001)) (internal quotations omitted).
The Court finds that an evidentiary hearing is not warranted in this case as the existing record
conclusively demonstrates that Alexander is not entitled to the relief he requests. See Rule 8(a) of
Rules Governing Section 2255 Proceedings; Almonacid v. United States, 476 F.3d 518, 521 (7th
Cir. 2007).
Alexander argues that the Supreme Court’s decision in Johnson v. United States, 135 S.Ct.
2251 (2015) applies to his case. In Johnson, the Supreme Court held that the residual clause of
the Armed Career Criminal Act’s (“ACCA”) definition of “violent felony” was unconstitutionally
vague and violates the Constitution’s guarantee of due process. Id. at 2563. Under the ACCA as
drafted at the time, if the offender had three or more prior convictions for a “serious drug offense”
or a “violent felony,” the ACCA increased his prison term to a minimum of 15 years and a
maximum of life. Id. at 2555.
Alexander’s Petition is subject to dismissal. First, the Petition is time-barred because it
was filed more than a year after Johnson was decided. See 28. U.S.C. § 2255(f)(3). Moreover,
the sentencing court did not designate Alexander an armed career criminal nor career offender;
consequently, he did not receive an enhanced sentence based on 18 U.S.C. § 924(e)’s residual
clause or § 4B1.2(a)’s residual clause.
Accordingly, Assistant Federal Public Defender Todd M. Schultz’s Motion to Withdraw
(Doc. 5) is GRANTED; Petitioner’s Motion for Relief pursuant to 28 U.S.C. § 2255 (Doc 1) is
DENIED; and this action is DISMISSED with prejudice. The Clerk of Court is DIRECTED to

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enter judgment accordingly.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing § 2255 Cases instructs the district court to “issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.” Pursuant
to 28 U.S.C. §2253(c)(2), a certificate of appealability may be issued “only if the applicant has
made a substantial showing of the denial of a constitutional right.” To meet this standard, the
petitioner “must have a constitutional claim (or an underlying procedural argument on which a
constitutional claim depends), and he must ‘demonstrate that reasonable jurists would find the
district court’s assessment of his constitutional claims debatable or wrong.’” United States v.
Fleming, 676 F.3d 621, 625 (7th Cir. 2012), Tennard v. Dretke, 542 U.S. 274, 281 (2004), Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
For the foregoing reasons, this Court has determined that Alexander has not stated any
grounds for relief under § 2255 and that reasonable jurists would not find that conclusion debatable
or wrong. Thus, Alexander has not made a “substantial showing of the denial of a constitutional
right,” and a certificate of appealability will not be issued.
IT IS SO ORDERED.
DATED: April 7, 2020

STACI M. YANDLE
United States District Judge

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