Bandy v. USA
Filing
1
OPINION AND ORDER dismissing for lack of jurisdiction Motion to Vacate (2255); denying as moot request seeking counsel as to Anthony Jerome Bandy. The Court DECLINES to issue a certificate of appealability.. Signed by Judge Rudy Lozano on 10/28/14. cc: Bandy(mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ANTHONY JEROME BANDY,
Defendant.
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No. 2:09-CR-125
(2:14-CV-278)
OPINION AND ORDER
This matter is before the Court on the Motion to Petition for
Reconsideration or Reargument on the Ground of Actual Innocence
Pursuant to § 2255, filed by Anthony Jerome Bandy on August 8, 2014
(DE #116), and the letter Seeking Counsel, filed by Anthony Jerome
Bandy on September 18, 2014 (DE #117).
For the reasons set forth
below, the motion (DE #116) is DISMISSED for lack of jurisdiction,
and the request contained within the letter (DE #117) is DENIED as
moot.
The Court DECLINES to issue a certificate of appealability.
BACKGROUND
Anthony Jerome Bandy (“Bandy”) pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. section 922(g)(1)
on October 16, 2009.
A contested sentencing hearing was held over
the course of two days in July of 2010, and, despite Bandy’s
objections, the Court ultimately determined that he was an Armed
Career Criminal pursuant to the Armed Career Criminal Act (“ACCA”).
See 18 U.S.C. § 924(e).
Bandy was sentenced to two hundred and ten
(210) months imprisonment.
Bandy appealed his conviction to the United States Court of
Appeals for the Seventh Circuit. Bandy’s court-appointed appellate
attorney filed an Anders brief moving to withdraw because he
concluded
that
the
nonfrivolous issues.
appeal
presented
no
factually
or
legally
Bandy’s counsel noted that any challenge to
the sentence imposed would have been frivolous on appeal as it was
not imposed in violation of the law, was not the result of an
incorrect application of the Guidelines, and was not substantively
unreasonable.
Bandy filed a response to his counsel’s motion
pursuant to Circuit Rule 51(b), in which he argued, among other
things, that his 1996 conviction in Georgia should not have
qualified as a violent felony for purposes of the ACCA.
The
Seventh Circuit Court of Appeals considered the issues raised in
the Anders brief as well as Bandy’s own arguments and ultimately
concluded that the appeal was frivolous, noting that:
[b]urglary
is
a
violent
felony,
§
924(e)(2)(B)(ii), and a state conviction for
burglary counts when it meets the federal
definition of generic burglary—entry into a
building for the purpose of committing a
crime. See Taylor v. United States, 495 U.S.
575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).
Georgia’s statute, Ga.Code § 16–7–1(a), covers
several different kinds of burglary, see
United States v. Bennett, 472 F.3d 825, 832
(11th Cir. 2006), and is divisible under the
approach of United States v. Woods, 576 F.3d
400, 404 (7th Cir. 2009). As Taylor permits,
see 495 U.S. at 599–602, 110 S.Ct. 2143, the
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district
court
looked
at
the
charging
documents to determine whether Bandy was
convicted of generic burglary. The indictment
specifies that Bandy and others entered
several dorm rooms on a college campus,
intending to steal the occupants’ possessions.
That meets the federal definition of generic
burglary. And, given Almendarez–Torres v.
United States, 523 U.S. 224, 118 S.Ct. 1219,
140 L.Ed.2d 350 (1998), it would be frivolous
to argue that any details about this
conviction had to be proved anew beyond a
reasonable doubt in the federal prosecution.
U.S. v. Bandy, 426 Fed. Appx. 448, 449, 2011 WL 2193286, *1 (7th
Cir. 2011).
Bandy filed a motion pursuant to 28 U.S.C. section 2255 on
April 17, 2012. In it he asserted that his counsel was ineffective
for failing to object to: (1) a lack of personal jurisdiction; (2)
a lack of subject matter jurisdiction; and (3) the Government’s
reliance on the Commerce Clause to enforce a violation of Title 18
U.S.C.
section
922(g)(1).1
The
Court
denied
declined to issue a certificate of appealability.
his
motion
and
Bandy appealed,
but the appeal was dismissed for failure to timely pay the required
docketing fee pursuant to Circuit Rule 3(b).
The mandate was
issued on September 12, 2013.
Bandy filed the instant motion on August 8, 2014, arguing for
“reconsideration or reargument on the ground of actual innocence
1
In his reply brief, Bandy also raised two additional arguments,
namely that his 1996 Georgia and 2007 Indiana convictions for burglary should
not have counted as violent felonies for purposes of sentencing him as an
armed career criminal under the ACCA. In its order, this Court pointed out in
a footnote that those arguments had been forfeited by Bandy, and that, even if
they had not, they were without merit. (See DE #101, pp. 12-13.)
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pursuant to § 2255.”
In it, Bandy argues that his motion for
reconsideration should be granted because the “said issue contained
herein were (sic) not correctable on direct appeal . . . because
the Court of Appeals failed to reviewed (sic) the record due to
appellate Counsel’s deficiency and Petitioner’s lack of the law.”
Bandy goes on to state that he is asserting a claim of “actual
innocence” to the 1996 Georgia burglary conviction that was used to
enhance his sentence pursuant to the ACCA.
He does not dispute
that the 1996 Georgia conviction was his (rather than that of
someone else); instead, he essentially rehashes the arguments he
made during the original sentencing proceedings, on direct appeal,
and in his reply brief to his original section 2255 motion --- that
the conviction should not have been deemed a violent felony because
he claims that he was ultimately convicted of “theft by receiving”
rather than burglary and was a “first time defendant.”
Bandy does
not present (or assert that there is) any newly discovered evidence
regarding this conviction.
DISCUSSION
When a motion is brought requesting reconsideration of a final
judgment, a court must first determine whether it has jurisdiction
to entertain the motion. Under certain circumstances, a motion for
reconsideration motion must be treated as a successive habeas
petition.
See Dunlap v. Litscher, 301 F.3d 873, 875-76 (7th Cir.
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2002); Harris v. Cotton, 296 F.3d 578, 579-80 (7th Cir. 2002)
(citations omitted) (“Prisoners are not allowed to avoid the
restrictions that Congress has placed on collateral attacks on
their convictions . . . by styling their collateral attacks as
motions for reconsideration under Rule 60(b).”)
If a motion for
reconsideration is in effect a second or successive petition, a
district court lacks jurisdiction to consider it unless the court
of appeals has granted the petitioner permission to file such a
petition.
See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244; Dunlap, 301
F.3d at 875 (noting that 28 U.S.C. section 2255, paragraph 8, is
“clear and bar[s] a district court from using Rule 60(b) to give a
prisoner broader relief from a judgment rendered by the court in
the prisoner’s [2255] proceeding.”).
The Seventh Circuit has
explained the Supreme Court’s position on such motions as follows:
Gonzalez [v. Crosby, 545 U.S. 524 (2005)]
holds that a motion under Fed.R.Civ.P. 60(b)
must be treated as a collateral attack when
the prisoner makes a ‘claim’ within the scope
of § 2244(b).
This means, the Court
concluded, that a procedural argument (say,
one about the statute of limitations) raised
using Rule 60(b) is not a new collateral
attack, but that an objection to the validity
of the criminal conviction or sentence is one
no matter how it is couched or captioned. See
also, e.g., Melton v. United States, 359 F.3d
855 (7th Cir. 2004); United States v. Evans,
224 F.3d 670 (7th Cir. 2000). The reasoning
of Gonzalez does not depend on which rule the
prisoner
invokes;
its
approach
is
as
applicable to post-judgment motions under
Fed.R.Crim.P. 6(e) as it is to motions under
Rule 60(b).
U.S. v. Scott, 414 F.3d 815, 816 (7th Cir. 2005).
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In this case, Bandy does not argue that there were any
procedural defects in the proceedings related to the Court’s
decision to deny relief under section 2255. Rather, his motion for
reconsideration again attempts to challenge the validity of his
sentence,
arguing
(as
he
did
during
the
underlying
criminal
proceedings, his direct appeal, and in the reply brief of his
original section 2255 motion) that this Court incorrectly used his
1996 burglary conviction to enhance his sentence.
Thus, Bandy’s
motion is a successive claim for relief under section 2255, for
which he must obtain leave to file from the Seventh Circuit Court
of Appeals. 28 U.S.C. § 2255(h). This Court lacks jurisdiction to
hear Bandy’s motion for reconsideration, and it must be DISMISSED.2
As such, the request “seeking counsel” contained within Bandy’s
subsequently filed letter is DENIED AS MOOT.
A
certificate
of
appealability
may
only
issue
if
the
petitioner “has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
Because this
motion is an unauthorized successive collateral attack, Bandy
cannot satisfy the criteria for a certificate of appealability.
2
To the extent Bandy argues that his position is somehow bolstered by
Descamps v. U.S., 133 S.Ct. 2276 (2013), he is mistaken. Descamps simply
adopted the divisible/indivisible distinction as discussed in U.S. v. Woods,
576 F.3d 400, 404 (7th Cir. 2009); Woods was cited to with approval by the
Seventh Circuit when it dismissed Bandy’s direct appeal. See U.S. v. Bandy,
426 Fed. Appx. 448, 449, 2011 WL 2193286, *1 (7th Cir. 2011). Furthermore,
Descamps has not been made retroactively applicable on collateral review.
Groves v. U.S., 755 F.3d 588, 593 (7th Cir. 2014).
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See Sveum v. Smith, 403 F.3d 447 (7th Cir. 2005). Accordingly, the
Court DECLINES to issue a certificate of appealability.
DATED: October 28, 2014
/s/ RUDY LOZANO, Judge
United States District Court
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