Khoury v. USA

Filing 29

ORDER regarding Petitioner's Motions for Leave to Amend (Docs. 25 & 26) his Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. For the reasons explained in the attached Memorandum & Order, those Motions are DENIED. Signed by Judge David W. Dugan on 11/8/2023. (jnh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL J. KHOURY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 3:16-cv-1085-DWD

MEMORANDUM & ORDER
DUGAN, District Judge:
Before the Court are Petitioner’s Motions for Leave to Amend (“Motions”) (Docs.
25 & 26) his Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.
Petitioner was indicted on January 22, 2015, for possession of a firearm by a felon.
See U.S. v. Khoury, No. 15-cr-30013, Doc. 1. He pled guilty pursuant to a plea agreement
on May 12, 2015. See id. at Docs. 19 & 20. Petitioner, who was found to be an armed career
criminal offender under 18 U.S.C. § 924(e), was sentenced to a term of 188 months
imprisonment. See id. at Doc. 34. Petitioner did not file a direct appeal.
Petitioner filed the Motion under § 2255 on September 26, 2016. (Doc. 1). That
Motion was amended on November 28, 2016. (Docs. 11 & 13). On January 26, 2017, the
Motion under § 2255 was granted in part and denied in part. Petitioner’s sentence was
set aside, as suggested by the Government, in light of U.S. v. Edwards, 836 F.3d 831 (7th
Cir. 2016), which implicated his base offense level. However, the Court rejected
Petitioner’s argument that he was no longer an armed career criminal offender following

Mathis v. U.S., 579 U.S. 500 (2016). Ultimately, Petitioner’s term of imprisonment was
reduced from 188 months to 180 months. See Khoury, No. 15-cr-30013, Doc. 49. Judgment
was entered on January 26, 2017. See id. at Doc. 17. Petitioner filed an appeal, but the
Seventh Circuit affirmed the Judgment, finding Petitioner was properly resentenced as
an armed career criminal offender. See id. at Docs. 54 & 64.
Thereafter, on May 23, 2022, Petitioner filed a Motion to Reconsider the partial
denial of his § 2255 Motion, seeking relief from the amended judgment under Federal
Rule of Civil Procedure 60(b)(6). (Doc. 24). Petitioner argued recent decisions of the
Seventh Circuit indicated he could no longer be considered an armed career criminal
offender. (Doc. 23, pgs. 1-2). Even assuming Petitioner’s argument was correct, however,
the Court denied the Motion to Reconsider on the basis that changes in the law, showing
a previous judgment might have been incorrect, did not constitute extraordinary
circumstances that justified relief under Rule 60(b)(6). In doing so, the Court expressly
noted that Petitioner did not explain why the Motion to Reconsider was brought over
five years after the ruling on his § 2255 Motion and over four years after the Seventh
Circuit affirmed his resentencing. Likewise, the Court noted Petitioner’s arguments were
rejected in a separate Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241.
See Khoury v. Dunbar, No. 21-cv-461, Doc. 20, pgs. 6-9 (Nov. 2, 2021). Petitioner’s appeal
from the denial of that Petition under § 2241 remains pending in the Seventh Circuit.
Now, Petitioner seeks to amend his § 2255 Motion under Federal Rule of Civil
Procedure 15(c)(1)(B), which provides as follows: “An amendment to a pleading relates
back to the date of the original pleading when…the amendment asserts a claim or defense
2

that arose out of the conduct, transaction, or occurrence set out—or attempted to be set
out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Petitioner seeks to present the
“same argument” as was stated in the § 2255 Motion, i.e., whether a conviction of Illinois
residential burglary can give rise to Petitioner’s ACCA enhancement. (Docs. 25, pg. 1; 26,
pg. 1). Petitioner emphasizes, “[t]he amendments do not contain new claims, but merely
additional arguments concerning the existing claims.” (Doc. 25, pg. 2). Petitioner relies
on, inter alia, Mathis and U.S. v. Glispie, 978 F.3d 502 (7th Cir. 2020), as he did before. The
Government filed a Response to the Motions (Doc. 28), as directed by the Court (Doc. 27).
Here, Petitioner was only “entitled to a single unencumbered opportunity to
pursue collateral review” under the Anti-Terrorism and Effective Death Penalty Act.
See Vitrano v. U.S., 643 F.3d 229, 233 (7th Cir. 2011); accord Rutherford v. U.S., No. 10-cv2057, 2012 WL 195614, *1 (C.D. Ill. Jan. 23, 2012); Rivas v. U.S., No. 17-cv-793, 2017 WL
11541230, *1 (E.D. Wisc. Dec. 18, 2017). It is likely for this reason that the Court is
presented with such an unusual procedural posture, namely, with motions to amend a
partially successful § 2255 motion after the entry of a final judgment. In other words,
Petitioner likely travels that path because he cannot obtain a certificate from the Seventh
Circuit to file a second or successive motion under § 2255. See 28 U.S.C. § 2255(h).
In any event, generally, “[o]nce final judgment has been entered in a case, ‘the
district court lacks jurisdiction to entertain a motion for leave to amend the complaint
unless the plaintiff also moves for relief from the judgment.’ ” See Foster v. DeLuca, 545
F.3d 582, 584 (7th Cir. 2008) (quoting Camp v. Gregory, 67 F.3d 1286, 1286 (7th Cir. 1995));
accord Childress v. Walker, 787 F.3d 433, 442 (7th Cir. 2015); see also Rodriguez v. U.S., 286
3

F.3d 972, 980 (7th Cir. 2002) (acknowledging, in a case where the district court entered a
judgment before the petitioner attempted to amend his § 2255 motion, “a court may grant
a plaintiff’s motion for leave to amend even after judgment ha[s] been entered,” but the
presumption in favor of liberality under Rule 15 is reversed in such a situation and the
party must successfully reopen the judgment under Federal Rule of Civil Procedure 59(e)
or 60(b) before requesting leave to amend under Rule 15).
Since the record plainly demonstrates Petitioner received an “unencumbered
opportunity” to challenge his sentence under § 2255, resulting in a partially successful
effort to vacate, set aside, or correct that sentence, and the final judgment related to the
corrected sentence remains in effect even after an appeal to the Seventh Circuit, the Court
FINDS Petitioner is not entitled to amend the Motion under § 2255. See DiNovo v. U.S.,
585 F. Supp. 2d 168, 170 (D. Mass. 2008) (“Amendment of a § 2255 petition is not allowed,
however, ‘after judgment has been rendered and while the judgment still remains in
force.’ ”); accord Ramirez-Burgos v. U.S., 990 F. Supp. 2d 108, 123 (D. P.R. 2013). As such,
the instant Motions, requesting leave to amend the § 2255 Motion, are DENIED.
SO ORDERED.
Dated: November 8, 2023

s/ David W. Dugan

___________________________
DAVID W. DUGAN
United States District Judge

4