Aldridge v Uited States of America

Filing 1

OPINION AND ORDER: DENYING Motion to Vacate, Set Aside or Correct Sentence (2255), ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 6/16/11. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LARRY ALDRIDGE,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent

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Cause No.: 3:11-CV-224 RLM
(arising out of 3:05-CR-69 RLM)

OPINION and ORDER
This matter comes before the court on Larry Aldridge’s pro se petition
challenging his sentence. Mr. Aldridge styled his petition as a motion “under
2241” and this court proposed to construe the petition as a habeas petition under
28 U.S.C. § 2255. See Order, April 27, 2011 [Doc. No. 51]. The court gave Mr.
Aldridge until May 27, 2011 to either withdraw his petition or to submit further
materials in support of a § 2255 petition. Mr. Aldridge has taken no further action.
Mr. Aldridge faced a multiple-count indictment for possession of crack and
powder cocaine and guns. Mr. Aldridge pleaded guilty to one count of distributing
more than 5 grams of crack cocaine (Count 1), 21 U.S.C. § 841(a)(1), and one
count of possession of a firearm in furtherance of a drug trafficking offense (Count
3), 18 U.S.C. § 924(c). On January 30, 2006, this court sentenced Mr. Aldridge to
147 months’ imprisonment (87 months on Count 1 and a consecutive 60 months
on Count 3). The later crack cocaine amendment to the sentencing guidelines

resulted in Mr. Aldridge’s sentenced being reduced to 130 months’ imprisonment
(70 months on Count 1 and a consecutive 60 months on Count 3).
Mr. Aldridge now challenges his mandatory minimum sentence under §
924(c) as unconstitutional because, he says, mandatory minimum sentences
“against a first time, non-violent offender” violate the Eighth Amendment
prohibition on cruel and unusual punishment. Petition, at 4 [Doc. No. 50]. Mr.
Aldridge also claims the indictment against him was defective for not containing
signatures of the jury foreperson and U.S. Attorney (even though the indictment
on the docket is properly signed) and for not spelling out in each count the
penalties he could face if convicted. Mr. Aldridge adds in a generic charge of
ineffective assistance of counsel when discussing the indictment’s silence
regarding potential penalties.
The rules governing § 2255 petitions require prompt review by the court.
If it plainly appears from the motion, any attached exhibits, and the
record of prior proceedings that the moving party is not entitled to
relief, the judge must dismiss the motion and direct the clerk to notify
the moving party.
Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts (February 1, 2010).
Mr. Aldridge expressly waived his right to pursue any post-conviction relief,
including, but not limited to, a proceeding under § 2255. Plea Agreement, at ¶ 8(d)
[Doc. No. 21]. Mr. Aldridge presents no facts or evidence to show his waiver was
not knowing and voluntary or that he received ineffective assistance of counsel

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with respect to that waiver. See Mason v. United States, 211 F.3d 1065, 1069 (7th
Cir. 2000); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999).
Additionally, Mr. Aldridge’s claims are time-barred by the one year statute
of limitations for filing § 2255 petitions. 28 U.S.C. § 2255(f). Mr. Aldridge’s
judgment became final more than five years ago, on January 30, 2006. Mr.
Aldridge presents no reason to toll the one year statute of limitations on his
petition.
Accordingly, the court summarily DENIES Mr. Aldridge’s petition for habeas
relief [Doc. No. 50].
SO ORDERED.
ENTERED: June 16, 2011
/s/ Robert L. Miller, Jr.
Judge
United States District Court

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