Joyner v. United States of America

Filing 3

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 4/5/2013 DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) by Dimitris Joyner; DENYING as moot 2 MOTION for Leave to Proceed in forma pauperis; Action DISMISSED with prejudice; Court declines to issue certificate of appealability. (cc: all counsel, via US mail to Dimitrius Joyner at Oxford Federal Correctional Institution )(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 13-C-339
(Criminal Case No. 11-Cr-235)

DIMITRIS D. JOYNER,
Movant.

DECISION AND ORDER

Pro se movant Dimitris Joyner (“Joyner”), who is incarcerated at the Federal
Correctional Institution in Oxford, Wisconsin, has filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence, accompanied by a petition and affidavit for leave to
proceed in forma pauperis. (ECF Nos. 1 & 2.) Joyner contends that the failure to credit his
home confinement time toward his sentence violates his Eight Amendment rights and his
counsel was ineffective in violation of his Sixth Amendment right to counsel for failing to
raise the issue of sentence credit for his home confinement. Joyner requests correction of his
sentence to afford him eight months and nine days of credit for the time prior to sentencing
that he was on home confinement.
Joyner’s motion is before the Court for initial review pursuant to Rule 4 of the
Rules Governing Section 2255 Proceedings for the United States District Courts. A district
court may dismiss a § 2255 motion without holding a hearing or requiring the government to
respond if “the motion and the files and records of the case conclusively show that the prisoner

is entitled to no relief.” Gallo-Vasquez v. United States, 402 F.3d 793, 797 (7th Cir. 2005)
(quoting 28 U.S.C. § 2255 ¶ 2.) “If it plainly appears from the face of the motion, any annexed
exhibits, and the record of prior proceedings that the moving party is not entitled to relief in
the district court, the judge must dismiss the motion and direct the clerk to notify the moving
party.” Rule 4(b) of the Rules Governing Section 2255 Proceedings. See also, Poe v. United
States, 468 F.3d 473, 477 (7th Cir. 2006).
Section 2255 of Title 28 of the United States Code authorizes a federal prisoner
to ask the court which sentenced him to vacate, set aside, or correct his sentence, if “the
sentence was imposed in violation of the Constitution or laws of the United States, or . . . the
court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of
the maximum authorized by law.” The Supreme Court has determined that the Attorney
General of the United States is the party who properly must determine whether a prisoner is
entitled to credit against his sentence; district courts are not authorized to compute any such
credit at sentencing. United States v. Wilson, 503 U.S. 329, 334 (1992). When formulating
a sentence, district courts do not have jurisdiction to take into account time served by a
prisoner prior to sentencing. United States v. Jones, 34 F.3d 495, 499 (7th Cir. 1994).
Additionally, defendants who spend time in pretrial home detention are not entitled to sentence
credit. See Reno v. Koray, 515 U.S. 50, 57 (1995); Rodriguez v. Lamer, 60 F.3d 745, 747
(11th Cir. 1995); Cucciniello v. Keller, 137 F.3d 721, 724 (2d Cir. 1998). Therefore, Joyner’s
first claim does not state an arguable claim for relief.

2

Furthermore, any argument by trial counsel seeking sentencing credit for
Joyner’s home confinement would have been frivolous, and attorneys have a duty not to
present frivolous arguments to the Court. See Fuller v. United States, 398 F.3d 644, 652 (7th
Cir. 2005). Therefore, Joyner’s second claim that counsel was ineffective to seek such credit
also fails to state an arguable claim for relief. Therefore, Joyner’s motion for relief pursuant
to § 2255 is denied, his motion to proceed in forma pauperis is denied as moot,1 and this
action is dismissed with prejudice.
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, the Court
must “issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” A certificate of appealability may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11
of Rules Governing Section 2255 Proceedings. The substantial showing standard is met when
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Having
considered the foregoing standards, the Court declines to issue a certificate of appealability.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Joyner’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence is DENIED;

1

There is no fee for filing a motion under 28 U.S.C. § 2255. See Advisory Committee’s 1976 Note on Rule
3 of the Rules Governing Section 2255 Proceedings.

3

Joyner’s motion to proceed in forma pauperis (ECF No. 2) is DENIED as moot;
This action is DISMISSED with prejudice;
This Court declines to issues a certificate of appealability; and
The Clerk of Court is DIRECTED to enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 5th day of April, 2013.
BY THE COURT

_______________________
Hon. Rudolph T. Randa
U.S. District Judge

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