Cooley v. Werlich

Filing 27

ORDER DENYING 26 Motion for Reconsideration. Signed by Judge David R. Herndon on 10/16/2018. (jer)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JERRY HOWARD COOLEY,
Petitioner,
v.

No. 17-cv-1082-DRH-CJP

T.G. WERLICH,
Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
I.

Introduction

Before the Court is Petitioner’s Motion for Reconsideration (Doc. 26) of the
Court’s September 5, 2018 Order (Doc. 24) adopting the Report and
Recommendation (“R&R”) (Doc. 20), issued on July 25, 2018, by Magistrate Judge
Proud, recommending the Court grant Respondent’s Motion to Dismiss (Doc. 13)
and dismiss the habeas litigation with prejudice. Specifically, Petitioner moves the
Court to reconsider its reliance on Hawkins. Based on the following, the Court
DENIES the motion.
II.

Background

Petitioner Cooley brought this pro se action for writ of habeas corpus under
28 U.S.C. § 2241 challenging the enhancement of his sentence as a career offender
under U.S.S.G § 4B1.1. (Doc. 1). On November 30, 2017, Respondent filed a motion
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to dismiss. (Doc. 13). Specifically, Respondent alleges that this case should be
summarily dismissed for two reasons: first, circuit precedent makes clear that an
incorrectly calculated advisory guidelines range is not reviewable in a postconviction proceeding. Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013),
reh’g en banc denied, Hawkins v. United States, 724 F.3d 915 (7th Cir. 2013);
United States v. Coleman, 763 F.3d 706 (7th Cir. 2014), as amended on denial
of reh'g and reh'g en banc (Oct. 16, 2014); and, secondly, Petitioner had no right
to bring his petition in the first place because he entered into a plea agreement
which bargained away his right to pursue post-conviction relief. (Doc. 13).
On July 25, 2018, Judge Proud submitted his R&R recommending the Court
grant Respondent’s Motion to Dismiss. (Doc. 20). On September 5, 2018, the Court
adopted the R&R in its entirety and dismissed with prejudice Petitioner’s petition.
(Doc. 24). Petitioner now moves the Court to reconsider its September 5, 2018
Memorandum and Order granting Respondent’s Motion to Dismiss. (Doc. 26).
III.

Standard of Review

Rule 59(e) motions serve a narrow purpose and must clearly establish either:
(1) a manifest error of law or fact or (2) present newly discovered evidence. Moro
v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996); Federal Deposit Ins. Corp. v.
Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986); Publishers Resource, Inc. v.
Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985). “The rule
essentially enables a district court to correct its own errors, sparing the parties and
the appellate courts the burden of unnecessary appellate proceedings.” Russell v.

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Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)
(citation omitted).
IV.

Analysis

As stated in the Court’s previous order, Petitioner’s petition is legally barred
under Seventh Circuit law. See Hawkins v. United States, 706 F.3d 820 (7th Cir.
2013), reh’g en banc denied, Hawkins v. United States, 724 F.3d 915 (7th Cir.
2013); United States v. Coleman, 763 F.3d 706 (7th Cir. 2014), as amended on
denial of reh'g and reh'g en banc (Oct. 16, 2014). Petitioner’s objection merely
takes umbrage with the current legal precedent that prohibits post-conviction relief
for an error in calculating a defendant’s sentencing guideline range when a
defendant was sentenced in the post-Booker era where guidelines are advisory, not
mandatory.
Additionally, while a defendant does have a due process right to be sentenced
based on accurate information, petitioner’s reliance on United States v. Tucker is
misplaced because it is clearly distinguishable from the present case. U.S. ex rel.
Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984) (citing United States v. Tucker,
92 S.Ct. 589, 591 (1972); Townsend v. Burke, 68 S.Ct. 1252 (1948)). In Tucker,
the sentencing court was unaware that two of the defendant’s prior convictions were
invalid because they had been obtained in violation of his right to counsel. Id. at
592. Here, the allegedly inaccurate information is not the fact of the prior
conviction; it is the classification of the prior conviction as a crime of violence. The
question of whether a prior crime qualifies as a crime of violence is a legal question,

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not a factual one. Therefore, Tucker is inapplicable in the present matter.
V.

Conclusion

Accordingly, the Court DENIES Petitioner’s Motion for Reconsideration.
(Doc. 26).
IT IS SO ORDERED.

Judge Herndon
2018.10.16
15:17:44 -05'00'
United States District Judge

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