Scanlan v. United States of America

Filing 32

ORDER signed by Judge Pamela Pepper on 11/9/2016 re 11 Amended MOTION to Vacate, Set Aside or Correct Sentence (2255) by Eric S Scanlan. The court ORDERS that the petitioner's 10/11/2013 amended motion to vacate, set aside or correct sentence is DISMISSED AS MOOT. (cc: all counsel)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ERIC S. SCANLAN,

Case No. 13-cv-440-pp

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________________
ORDER DISMISSING AS MOOT REMAINDER OF AMENDED MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C.
§2255 (DKT. NO. 11)
______________________________________________________________________________
On April 22, 2013, the petitioner filed a motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. §2255. Dkt. No. 1. Judge Randa appointed
counsel to represent the petitioner, Dkt. No. 6, and on October 11, 2013,
counsel filed an amended motion, Dkt. No. 11.
The amended motion raised two issues: (1) whether the defendant was
denied his Sixth Amendment right to counsel when trial counsel in United
State v. Scanlan, Case No. 10-cr-25, failed to contest the use of the defendant’s
California burglary conviction to enhance his Guidelines sentence, and (2)
whether it was improper for the sentencing court in that case to use the
California burglary conviction to enhance the petitioner’s sentence under
U.S.S.G. §2K2.1(a)(2). Id. at 4-5.
The parties fully briefed both issues. Dkt. Nos. 14 (petitioner’s brief); 16
(respondent’s opposition brief); 17 (petitioner’s reply brief). On October 31,
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2014, prior to Judge Randa having ruled on the motion, Scanlan’s counsel filed
a letter notifying the court that the Seventh Circuit had issued recent decision
which bolstered Scanlan’s position regarding the timing of his petition. Dkt. No.
18. On August 10, 2015—again, before Judge Randa had issued a decision—
the parties filed a joint request, asking the court to allow them to brief the
issue of how the United States Supreme Court’s recent decision in Johnson v.
United States, 135 S. Ct. 2551 (2015) might impact the issue the petitioner had
raised in Ground Two. Dkt. No. 20. The court allowed the parties to brief that
issue; the last brief was filed on November 24, 2015. Dkt. No. 23.
On January 26, 2016, Judge Randa stayed all further proceedings in this
case to await the outcome of several decisions pending before the Seventh
Circuit: United States v. Hurlburt/Gillespie, ___ F.3d ___, 2016 WL 4506717
(7th Cir., August 29, 2016) and United States v. Rollins, ___ F.3d ___, 2016 WL
4587028 (7th Cir., August 29, 2016). As the citations indicate, the Seventh
Circuit decided those cases on August 29, 2016.
The series of cases starting with Descamps v. United States, 133 S. Ct.
2276 (2013), and running through Hurlburt/Gillespie and Rollins, resulted in
sufficient changes in the law that the court asked the respondent whether it
objected to the court granting the petition as to Ground Two, to the extent of
entering an amended judgment reducing the petitioner’s sentence. Dkt. No. 27.
The government indicated that it did not object, and on October 4, 2016, the
court entered an amended judgment and statement of reasons in the criminal
case, United States v. Scanlan, Case No. 10-cr-25 (Dkt. Nos. 35, 36).
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There remained, however, Ground One of the petition—the petitioner’s
assertion that his trial counsel was ineffective. The amended judgment did not
automatically dispose of that issue. On October 4, 2016, the court ordered that
by day’s end on November 4, 2016, the parties file statements regarding
whether the petitioner’s Sixth Amendment ineffective assistance of counsel
claim effectively was moot. Dkt. No. 30.
On October 26, 2016, the petitioner’s appointed counsel filed a letter
with the court. Dkt. No. 31. In that letter, counsel informed the court that the
petitioner had been released from the custody of the Bureau of Prisons. Id. at
1. He also informed the court that he had conferred with counsel for the
respondent, and that after reviewing the entire file and the status of the
proceedings, counsel for both parties agreed that the petitioner’s Sixth
Amendment claim now was moot, and required no further proceedings. Id. The
court is grateful to both counsel for their prompt review of this issue, and their
report.
Accordingly, the court ORDERS that the petitioner’s October 11, 2013
amended motion to vacate, set aside or correct sentence is DISMISSED AS
MOOT. Dkt. No. 11.
Dated in Milwaukee, Wisconsin this 9th day of November, 2016.

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