Stewart v. United States of America

Filing 3

ORDER signed by Judge J P Stadtmueller on 2/5/15: within 30 days of the entry of this order Respondent shall file a brief addressing the issues of timeliness, successiveness, and the facial merits of Petitioner's claims; Petitioner shall file a response within 30 days; Respondent may then file a reply within 14 days; and, denying as moot 2 Petitioner's Motion for Leave to Proceed in forma pauperis. See Order. (cc: Petitioner, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JERMAINE STEWART,
Petitioner,

Case No. 15-CV-73-JPS

v.
UNITED STATES OF AMERICA,

ORDER

Respondent.
The petitioner, Jermaine Stewart, pled guilty to one count of an
indictment charging him with conspiracy to distribute one kilogram or more
of heroin, resulting in death. (See, e.g., Case No. 08-CR-197, Docket #587,
#603). On March 1, 2011, the Court sentenced Mr. Stewart to a term of
imprisonment of 300 months. (Case No. 08-CR-197, Docket #832, #833). Mr.
Stewart appealed, but, on July 3, 2013, the Seventh Circuit affirmed his
conviction. (See Case No. 08-CR-197, Docket #928). Mr. Stewart requested
rehearing en banc, but the Seventh Circuit denied that request in an order
dated August 23, 2013. (See Case No. 08-CR-197, Docket #930).
On January 20, 2015, Mr. Stewart filed a motion to vacate his sentence,
pursuant to 28 U.S.C. § 2255. (Docket #1). That motion is now before the
Court for screening:
If it plainly appears from the motion, any attached exhibits,
and the record of the 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. If the motion is not
dismissed, the judge must order the United States Attorney to
file an answer, motion, or other response within a fixed time,
or to take other action the judge may order.
Rule 4(b), Rules Governing § 2255 Proceedings.

1.

TIMELINESS
The Court begins by addressing the timeliness of Mr. Stewart’s

motion.
1.1

Untimeliness Under 28 U.S.C. § 2255(f)(1)

28 U.S.C. § 2255(f) provides that there is a one-year limitations period
in which to file a motion seeking 28 U.S.C. § 2255 relief. That limitations
period typically runs from “the date on which the judgment of conviction
becomes final.” 28 U.S.C. § 2255(f)(1). “Finality attaches when [the Supreme
Court] affirms a conviction on the merits on direct review or denies a petition
for a writ of certiorari, or when the time for filing a certiorari petition
expires.” Clay v. United States, 537 U.S. 522, 527 (2003).
In this case, it does not appear that Mr. Stewart filed a certiorari
petition with the Supreme Court (he has not informed the Court that he ever
filed such a petition, nor can the Court locate a petition bearing Mr. Stewart’s
name in the Supreme Court’s docketing system). Thus, Mr. Stewart’s
conviction became final at the expiration of the 90-day time period to file a
certiorari petition. See Sup. Ct. R. 13(1). However, because Mr. Stewart filed
a request for a rehearing en banc, the 90-day period did not begin to run until
that request was denied. See Sup. Ct. R. 13(3). The Seventh Circuit denied that
request on August 23, 2013. (Case No. 08-CR-197, Docket #930).
Thus, his conviction became final on November 21, 2013, which was
90 days after the denial of his request for rehearing en banc. Accordingly,
under 28 U.S.C. § 2255(f)(1), Mr. Stewart’s motion was due within one year:
on or before November 21, 2014. In filing it on January 20, 2015 (Docket #1),
Mr. Stewart is two months too late.

Page 2 of 21

1.2

Potential Exceptions to Untimeliness

That is not the end of the analysis, though, because there are a number
of statutory and common-law exceptions that may apply to make Mr.
Stewart’s petition timely.
1.2.1

Statutory Exceptions

The Court begins with the statutory exceptions. 28 U.S.C. § 2255(f)
provides a number of other circumstances in which the one-year limitations
period may begin to run later than the date on which the conviction becomes
final. See 28 U.S.C. §§ 2255(f)(2–4). It does not appear that any of those
exceptions apply in this case, though.
1.2.1.1 28 U.S.C. § 2255(f)(2)
The first exception applies in situations where there was some
impediment to making the motion caused by the government. 28 U.S.C.
§ 2255(f)(2). Mr. Stewart does not mention anything that could be construed
as government action that prevented him from filing his motion. (See Docket
#1). Thus, the Court will not apply 28 U.S.C. § 2255(f)(2) to Mr. Stewart’s
motion.
1.2.1.2 28 U.S.C. § 2255(f)(3)
The second statutory exception applies when the Supreme Court has
recognized a new right and made it retroactively applicable to cases on
collateral review. 28 U.S.C. § 2255(f)(3). It is the most promising of the
statutory exceptions for Mr. Stewart, but again the Court is obliged to find
it is inapplicable. The Court does note that two of Mr. Stewart's grounds for
relief relate to recent Supreme Court cases, but ultimately concludes that
neither ground triggers 28 U.S.C. § 2255(f)(3)’s later starting date.

Page 3 of 21

Mr. Stewart’s first ground is that the drug he distributed was not an
independently sufficient cause of death or injury. (Docket #1 at 4). This
argument relates to the Supreme Court's recent decision in Burrage v. United
States, decided on January 27, 2014, holding that a defendant cannot be liable
for the death-results enhancement provision unless the use of the drug
supplied was a but-for cause of the death. Burrage, --- U.S. ----, 134 S.Ct. 881,
892 (2014). But several courts have already found that Burrage did not
announce a new rule of constitutional law and that, even if it had, the
Supreme Court did not make Burrage retroactively applicable. See, e.g., In re:
Carlos Alvarez, No. 14-10661-D at 3 (11th Cir. Mar. 6, 2014) (petitioner not
allowed to file second or successive § 2255 motion because the Supreme
Court “did not expressly hold that Burrage is retroactive on collateral
review.”); United States v. Bourlier, No. 3:14cv609, 2014 WL 6750674 at *2
(N.D. Fla. December 1, 2014); Alvarez v. Hastings, No. CV214-070, 2014 WL
4385703 at *1 (S.D. Ga. Sep. 5, 2014); De La Cruz v. Quintana, No. 14-28-KKC,
2014 WL 1883707 at *6 (E.D. Ky. May 1, 2014); Taylor v. Cross, No. 14-CV-304,
2014 WL 1256371 at *3 (S.D. Ill. Mar. 26, 2014); Powell v. United States, No.
3:09-CV-2141, 2014 WL 5092762 at *2 (D. Conn. Oct. 10, 2014). Thus, Burrage
does not trigger 28 U.S.C. § 2255(f)(3)’s application.
The other potential 28 U.S.C. § 2255(f)(3) trigger is Mr. Stewart’s third
ground: that he is actually innocent. This could relate to McQuiggin v. Perkins,
--- U.S. ----, 133 S.Ct. 1924 (2013), which discussed actual innocence as a
gateway for untimely petitions. But the Supreme Court has never recognized
actual innocence as a cognizable, standalone habeas claim, so the Court
would be reluctant to find that it announced a new and retroactivelyapplicable right. See, e.g., Herrera v. Colins, 506 U.S. 390, 404 (1993);
Page 4 of 21

McQuiggin, 133 S.Ct. at 1931 (“We have not resolved whether a prisoner may
be entitled to habeas relief based on a freestanding claim of actual
innocence.”). In any event, the Supreme Court decided McQuiggin on
May 28, 2013—before the Seventh Circuit’s action on Mr. Stewart’s appeal.
So, even if the limitations period ran from the issuance of McQuiggins, Mr.
Stewart’s motion would still be untimely. 28 U.S.C. § 2255(f)(3).
1.2.1.3 28 U.S.C. § 2255(f)(4)
The final statutory exception applies when the facts supporting a
claim could not have been discovered earlier. 28 U.S.C. § 2255(f)(4). But,
again, that exception does not apply in this case because Mr. Stewart does
not allege that there is any newly-discovered evidence in this case.
In sum, none of the exceptions to 28 U.S.C. § 2255(f)(1)’s general rule
apply in this case. Accordingly, the Court is obliged to determine that 28
U.S.C. § 2255(f)(1) applies, making Mr. Stewart’s motion untimely.
1.2.2

Common Law Exceptions

There are two other potentially-applicable common law exceptions
that may apply to make Mr. Stewart’s motion timely.
1.2.2.1 Actual Innocence
The first of those exceptions is the “actual innocence gateway”
recognized in McQuiggins. See 133 S.Ct. 1924. To determine whether this
exception applies, the Court must decide whether Mr. Stewart offers “new
evidence” that would be sufficient to make a credible claim for actual
innocence; he does not. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (claim of
actual innocence “requires a petitioner to support his allegations of
constitutional error with new reliable evidence.”). In fact, Mr. Stewart does
not satisfy either portion of that formulation: he does not offer new evidence
Page 5 of 21

and it is clear that he is not actually innocent of the crime of which he was
convicted.
As to new evidence, Mr. Stewart does not even allege that there is any
new evidence in this case. So he clearly fails that requirement.
Even if Mr. Stewart presented new evidence, though, he would also
have to show that the new evidence supported a “credible” claim for actual
innocence, which requires a showing that “it is more likely than not that no
reasonable juror would have convicted him,” in light of the evidence. See,
e.g., id.; McQuiggin, 133 S.Ct. at 1927. He clearly could not do that in this case.
To begin, the Court found and the Seventh Circuit agreed that Mr.
Stewart was responsible for distributing the drugs that caused the victims’
deaths:
In this case, it is clear that Stewart's actions and conduct led to
the victims’ deaths. He supplied his distributors and relied
upon them to resell to end users. It was certainly understood
that recipients of drugs Stewart provided would resell, share,
or otherwise offer the drugs to unknown or unauthorized
users. Like our sister circuits, we acknowledge that our
analysis might differ if a defendant’s participation in the chain
of distribution is especially removed from a victim’s resulting
death, as in the cases of Walker and Gladney. In such cases, “a
court might conclude that it would not be consistent with
congressional intent to apply the mandatory 20–year minimum
sentence.” But Stewart’s case does not require us to weigh
these concerns. The victims’ deaths were directly caused by
Stewart’s criminal conduct; indeed, they were part of the
ordinary course of business for the conspiracy he led.
Therefore Stewart is liable for the deaths and we affirm the
district court’s application of the penalty to his sentence.

Page 6 of 21

United States v. Walker, 721 F.3d 828, 839-40 (7th Cir. 2013) cert. granted,
judgment vacated sub nom. Lawler v. United States, 134 S. Ct. 2287 (2014)
(vacating judgment only of Mr. Stewart’s co-defendant Jean Lawler).
Granted, the Seventh Circuit’s discussion, above, focuses exclusively
on Mr. Stewart’s role in the conspiracy, rather than whether the heroin sold
by Mr. Stewart was a but-for cause of the deaths of the victims, as required
by Burrage, 134 S.Ct. at 891–92. But the charge to which Mr. Stewart pled
guilty included the following language:
d.

Death and serious bodily injury resulted from the use of the
heroin distributed in furtherance of the conspiracy, including
the heroin overdose deaths of the following individuals:

(Docket #587, ¶ 4 (after which the charge names five separate individuals
whose deaths resulted from heroin overdoses)).
Thus, in pleading guilty, Mr. Stewart acknowledged the fact that the
heroin he sold caused “the heroin overdose deaths” of five individuals.
(Docket #587, ¶ 4). The fact that Mr. Stewart’s charge involved “heroin
overdose deaths” is more than sufficient, in the Court’s eyes, to establish that
the heroin sold by Mr. Stewart was a but-for cause of the deaths, as required
by Burrage, 134 S.Ct. at 891–92.
Moreover,

Mr.

Stewart’s

presentence

report

describes

the

circumstances surrounding the victims’ deaths, making clear that the
defendant’s heroin was a but-for cause—in fact the sole cause—of the victims’
deaths. (See Docket #810). The presentence report describes the deaths of each
of the five victims, and reports only heroin (obtained through Mr. Stewart’s
supply chain in each instance) as having been ingested and having caused the
death. (Docket #810, ¶¶ 29, 37, 43, 71–72, 75–76). In at least two cases,
autopsy results established that the cause of death was “opiate intoxication”
Page 7 of 21

or “heroin intoxication,” establishing that the heroin supplied by Mr. Stewart
was a but-for cause of death. (Docket #810, ¶¶ 37, 43). Significantly, Mr.
Stewart did not object to any of the facts relating to the heroin deaths. (See
Docket #10, Ex. 1 (of the above-cited paragraphs, objecting only to Paragraph
72 and Paragraph 76, and objecting to non-death related facts as to each).1
In any event, Mr. Stewart has not presented any credible evidence to
show that the heroin was not a but-for cause of the deaths, such that “no
reasonable juror” could find that the heroin he sold caused the deaths. See
Schlup, 513 U.S. at 324.
For all of these reasons, the actual-innocence gateway described by
McQuiggins is not available to Mr. Stewart.
1.2.2.2 Equitable Tolling
In the final portion of its timeliness analysis, the Court must determine
whether to equitable toll the one-year limitations period. See United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Equitable tolling is “reserved for
extraordinary circumstances far beyond the litigant’s control that prevented
timely filing.” Socha v. Boughton (Socha II), 763 F.3d 674, 684 (7th Cir. 2014)
(quoting Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004)). To be
entitled to equitable tolling, a petitioner bears the burden of establishing: “(1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.”
Socha II, 763 F.3d at 683–84 (citing Holland v. Florida, 560 U.S. 631, 649 (2010);

1

Mr. Stewart filed a handwritten letter/memorandum describing his desire
that the Court use a but-for standard in determining whether the death resulting
enhancement applied, but in doing so never objected to any of the facts that would
go directly to establishing the heroin he sold as a but-for cause of death. (See Docket
#810, Ex. 1 at 16–21).

Page 8 of 21

Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008)) (internal quotation marks
omitted).
The Seventh Circuit has recently cautioned district courts that
equitable tolling is not a “chimera—something that exists only in the
imagination.” Socha II, 763 F.3d at 684. Rather, despite not having approved
of equitable tolling of a habeas corpus petition for many years, see Tucker v.
Kingston, 538 F.3d 732, 734 (7th Cir. 2008), the Seventh Circuit now notes that
courts “are not free…to regard equitable tolling as something that exists in
name only; this would render the Supreme Court’s explicit approval of
equitable tolling in Holland a nullity.” Socha II, 763 F.3d at 684 (citing
McQuiggin, 133 S. Ct. at 1931). In Davis v. Humphreys, 747 F.3d 497, 498–99
(7th Cir. 2014), the Seventh Circuit held that mental incompetence may
support equitable tolling of the 28 U.S.C. § 2244(d) limitations period, and
remanded the case to the district court “for a more nuanced evaluation of the
petitioner’s mental capabilities.” Socha II, 763 F.3d at 684 (citing Davis, 747
F.3d at 498–99). Likewise, the Seventh Circuit has issued other rulings that
implicate portions of the equitable tolling analysis where prison officials
intentionally confiscated a petitioner’s legal papers, Weddington v. Zatecky,
721 F.3d 456, 464–65 (7th Cir. 2013), and where a district court provided
erroneous legal information to a petitioner, Carter v. Hodge, 726 F.3d 917, 919
(7th Cir. 2013).
Given this somewhat-inconsistent guidance, there is one principle that
seems most clear: “The realm of equitable tolling is a ‘highly fact-dependent
area’ in which courts are expected to employ ‘flexible standards on a case-bycase basis.’” Socha II, 763 F.3d at 684 (quoting Socha v. Pollard (Socha I), 621
F.3d 667, 672; citing Holland, 560 U.S. at 650–52). In keeping with that
Page 9 of 21

principle, “it is difficult to conceive of a situation where a claim of equitable
tolling would be clear on the face of the petition,” so it is generally accepted
that the Court should not dismiss a petition sua sponte on timeliness grounds,
without input from the parties. See, e.g., Gildon v. Bowen, 384 F.3d 883 (7th Cir.
2004) (also noting that the limitations period of 28 U.S.C. § 2244 “is an
affirmative defense, [which] the state has the burden of” proving) (citing
Acosta v. Artuz, 221 F.3d 117, 121–22 (2d Cir. 2000); United States v. Burke, 504
U.S. 229, 246 (1992) (Scalia, J. concurring)); see also Ray v. Clements, 700 F.3d
993, 1006 (7th Cir. 2012).
In discussing this, the Court also notes that the first page of Mr.
Stewart’s motion bears evidence that may weigh in favor of equitable tolling:
there are two stamps that read “RETURNED,” and bear the name of Thomas
Bruton, who is the clerk of the Northern District of Illinois. (See Docket #1 at
1). Those two stamps are dated November 3, 2014, and November 17, 2014.
(See Docket #1 at 1). This implies that Mr. Stewart tried and failed to submit
his motion to the Northern District of Illinois twice before sending it to the
Eastern District of Wisconsin (this district). Of course, because this Court
imposed Mr. Stewart’s sentence, it is the proper court before which to file a
28 U.S.C. § 2255 motion. 28 U.S.C. § 2255(a) (“may move the court which
imposed the sentence to vacate, set aside or correct the sentence.”).
The Court cannot be sure as to why Mr. Stewart initially filed his
motion in the Northern District of Illinois, but—whatever the reason—it

Page 10 of 21

may form the basis for application of equitable tolling.2 Accordingly, it would
seem to be inappropriate for the Court to dismiss this action as untimely
without offering Mr. Stewart an opportunity to further brief issues of
timeliness.
The Court will, ultimately, require further briefing in this case. As the
Court will discuss in further detail, setting aside any timeliness concerns, it
may still “dismiss a petition sua sponte if it appears on its face to be without
merit.” Gildon v. Bowen, 384 F.3d at 886 (citing Acosta v. Artuz, 221 F.3d 117,
122 (2d Cir. 2000)); see also Rule 4(b), Rules Governing § 2255 Proceedings.
And this may be such a case. In addition to the timeliness issues discussed by
the Court, serious concerns remain as to whether Mr. Stewart’s petition is
second or successive and also whether his stated grounds for relief can even
form the basis for relief.
2.

SECOND OR SUCCESSIVE MOTION
28 U.S.C. § 2255(h) states that “[a] second or successive motion must

be certified as provided in section 2244 by a panel of the appropriate court
of appeals to contain” either newly discovered evidence or a new rule of

2

Mr. Stewart would face an uphill battle to establish that equitable tolling
is appropriate, as the Seventh Circuit has already determined that so many things
do not constitute extraordinary circumstances. See e.g., Johnson v. McCaughtry, 265
F.3d 559, 566 (7th Cir. 2001) (incarceration, alone, is not an extraordinary
circumstance); Socha II, 763 F.3d at 685 (placement in segregation, alone is not an
extraordinary circumstance) (citing Hizbullahankhamon v. Walker, 105 F. Supp. 2d
339, 344 (S.D.N.Y. 2000), aff’d 255 F.3d 65, 75 (2d Cir. 2001)); Socha II, 763 F.3d at 685
(lack of legal representation is not an extraordinary circumstance) (citing
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)); Taylor v. Michael, 724 F.3d 806, 811
(7th Cir. 2013) (lack of legal knowledge is not an extraordinary circumstance);
Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003) (attorney’s incapacity is not an
extraordinary circumstance). And that does not even mention the fact that Mr.
Stewart would still have to establish that he acted diligently.

Page 11 of 21

constitutional law made retroactive to cases on collateral review. There is no
question that Mr. Stewart did not receive authorization to file his motion in
this case, and thus his motion would be subject to immediate dismissal if it
is “second or successive.” The Court is concerned that Mr. Stewart may
already have filed a document that should be classified as his first 28 U.S.C.
§ 2255 motion, which would make the one under consideration “second or
successive.”
As the Court has already discussed, the Seventh Circuit affirmed Mr.
Stewart’s conviction on July 3, 2013, after which it denied his petition for a
rehearing en banc. (7th Cir. Case No. 11-1510, Docket #59, #71). Nearly a year
later, on August 12, 2014, Mr. Stewart, acting pro se, filed a group of papers
with the Seventh Circuit. (7th Cir. Case No. 11-1510, Docket #73). That filing
was docketed as “Pro se motion filed by Appellant Jermaine J. Stewart to
recall the mandate in support of objections to death resulting enhancement.”
(7th Cir. Case No. 11-1510, Docket #73). The filing actually consists of two
separate documents.
Mr. Stewart did, indeed, caption the first page of the first document
as “MOTION TO RECALL MANDATE IN SUPPORT OF OBJECTIONS TO
DEATH RESULTING ENHANCEMENT.” (7th Cir. Case No. 11-1510, Docket
#73 at 1). He then went on to provide arguments very similar to those raised
in the motion now before the Court: that Burrage applies and, in conjunction
with Alleyne, operates to require resentencing or a lower sentence. (See, e.g.,
7th Cir. Case No. 11-1510, Docket #73 at 2–7). Mr. Stewart signed that first
document, and it contains a notary seal dated June 25, 2014. (7th Cir. Case
No. 11-1510, Docket #73 at 7).

Page 12 of 21

The second document is captioned “Title 18 U.S.C. § 3582(c)(2) Motion
to Modify and reduce sentence pursuant to Plain Error criminal procedure
rule 52(b) And the U.S.S.G. 2D1.1.” (7th Cir. Case No. 11-1510, Docket #73 at
9). In that document, Mr. Stewart again makes various arguments similar to
those he is raising in the motion now before the Court. (See, e.g., 7th Cir. Case
No. 11-1510, Docket #73 at 9–16). Mr. Stewart also signed this document, and
it contains a notary seal dated August 4, 2014. (7th Cir. Case No. 11-1510,
Docket #73 at 16). Finally, Mr. Stewart attached a copy of the Burrage opinion.
The Seventh Circuit, in a one sentence order issued by Judge Ann
Williams, denied Mr. Stewart’s pro se motions, stating in full: “Upon
consideration of the MOTION TO RECALL MANDATE IN SUPPORT OF
OBJECTIONS TO DEATH RESULTING ENHANCEMENT, filed on
August 12, 2014, by the pro se appellant, IT IS ORDERED that the motion
to recall the mandate is DENIED.” (7th Cir. Case No. 11-1510, Docket #74 at
1).
In light of all of this, the Court believes that Mr. Stewart’s post-appeal
filing with the Seventh Circuit—docketed as a motion to recall the mandate,
consistent with the caption of the first portion of the filing—should be
construed as his first 28 U.S.C. § 2255 motion. Many courts, including the
Seventh Circuit, have treated motions to recall a mandate as second or
successive motions pursuant to 28 U.S.C. § 2255(h) (or its state habeas analog,
28 U.S.C. § 2244(b)). See, e.g., United States v. Ford, 383 F.3d 567, 568 (7th Cir.
2004) (“We have held that motions to recall the mandate in a direct criminal
appeal cannot be used to avoid the successive petition restrictions of 28
U.S.C. § 2255.”) (citing United States v. Prevatte, 300 F.3d 792, 796–97 (7th Cir.
2002); Gray-Bey v. United States, 209 F.3d 986, 988 (7th Cir. 2000); Calderon v.
Page 13 of 21

Thompson, 523 U.S. 538, 553–54 (1998)); Lambert v. Buss, 489 F.3d 779, 780 (7th
Cir. 2007) (“Motions to recall the mandate in a § 2254 habeas case are subject
to the restrictions on successive petitions found in § 2244(b).”) (citing
Calderon, 523 U.S. at 553–54; Benefiel v. Davis, 403 F.3d 825, 827 (7th Cir. 2005);
Burris v. Parke, 130 F.3d 782, 784–85 (7th Cir. 1997)); United States v. Redd, 735
F.3d 88, 90 (2d Cir. 2013) (“‘[W]hen a defendant moves to recall the mandate
based on intervening precedent that calls into question the merits of the
decision affirming his conviction, we construe the motion as one to vacate the
defendant’s sentence pursuant to 28 U.S.C. § 2255.’”) (quoting United States
v. Fabian, 555 F.3d 66, 68 (2d Cir. 2009); citing Bottone v. United States, 350 F.3d
59, 63 (2d Cir. 2003)); Bottone, 350 F.3d at 63 (criminal defendant “cannot
evade the successive petition restrictions of 28 U.S.C. § 2255…by framing his
claims as a motion to recall the mandate.”).
However, the Court hesitates to summarily dismiss Mr. Stewart’s
motion as second or successive on this point because it has been unable to
locate a case with an identical factual predicate. In all of the cases that the
Court has found, the petitioner filed a motion to recall the mandate after
previously filing his or her initial 28 U.S.C. § 2255 motion (or § 2254 petition).
Here, on the other hand, Mr. Stewart filed his pro se motion to recall the
mandate before filing the 28 U.S.C. § 2255 petition now before the Court.
As a matter of logic, the Court should perhaps view this as a
distinction without a difference. For, if a motion to recall a mandate can be
considered a second or successive motion for purposes of 28 U.S.C. § 2255(h),
why should it not also be considered an initial motion for the same purposes?
Language from the Seventh Circuit implies that this should be the
case. In Ford, the Seventh Circuit stated that: “We have held that motions to
Page 14 of 21

recall the mandate in a direct criminal appeal cannot be used to avoid the
successive petition restrictions of 28 U.S.C. § 2255.” 383 F.3d at 568. That
language implies that the Court should treat Mr. Stewart’s current 28 U.S.C.
§ 2255 motion as second or successive, in order to prevent the formation of
a loophole to 28 U.S.C. § 2255(h)’s bar on such petitions. For instance, if
courts were not to treat earlier-filed motions to recall a mandate as initial
petitions, that would allow all federal criminal defendants two bites at the
apple. They could first file a motion to recall the mandate with the Seventh
Circuit; after that, they could file a 28 U.S.C. § 2255 motion. This would seem
to undermine the purpose of 28 U.S.C. § 2255(h)’s bar on second or
successive petitions.
The Second Circuit’s language applies even more clearly: “‘[W]hen a
defendant moves to recall the mandate based on intervening precedent that
calls into question the merits of the decision affirming his conviction, we
construe the motion as one to vacate the defendant’s sentence pursuant to 28
U.S.C. § 2255.’” Redd, 735 F.3d at 90 (quoting Fabian, 555 F.3d at 68). By its
plain terms, that language makes clear that a motion to recall a mandate
should be treated as a 28 U.S.C. § 2255 motion.
The Court is not without its doubts, though. As the Court has already
noted, there is no case law that is precisely on point. Perhaps more
importantly, it does not appear that the Seventh Circuit gave any substantive
consideration to Mr. Stewart’s motion. The Seventh Circuit denied it in a
single sentence without providing any reason or authority. (7th Cir. Case No.
11-1510, Docket #74 at 1). Of course, because Mr. Stewart was pro se at the
time that he filed his 28 U.S.C. § 2255(h) motion, it is likely that Mr. Stewart
simply did not understand what he was filing (or the way that his filing

Page 15 of 21

would impact his ability to file a 28 U.S.C. § 2255(h) motion in the future).
Simply put, the Court is reluctant to hold that Mr. Stewart should be barred
from having the merits of his 28 U.S.C. § 2255 motion considered by this
Court simply as a result of his having first accidentally filed a motion to
recall the mandate before the Seventh Circuit (the merits of which, it must be
noted, the Seventh Circuit did not address).
In the end, because there are significant issues regarding timeliness
that remain to be addressed, the Court finds that the better exercise of
discretion is to also allow the parties to brief this issue. So, at this juncture,
the Court will not bar Mr. Stewart’s motion as second or successive pursuant
to 28 U.S.C. § 2255(h).
3.

MERITS OF MR. STEWART’S CLAIMS
Mr. Stewart’s claims also face trouble on their merits. Thus, they may

be subject to summary dismissal on that basis, as well, regardless of the
timeliness and successiveness issues. Mr. Stewart alleges the following four
claims for relief:
(1)

that use of the drugs distributed by the defendant was not an
independently sufficient cause of the victims’ death as is now
required by Burrage, 134 S.Ct. at 892 (the Court will refer to this
as the “Burrage claim”);

(2)

that Mr. Stewart was under duress—“of such a nature as to
include a well-grounded apprehension of de[a]th or serious
bodily injury”—when he signed the plea agreement (the “plea
agreement claim”);

(3)

that heroin did not cause the victims’ deaths (the “actual
innocence claim”); and

(4)

that the Court misapplied the Armed Career Criminal Act, 18
U.S.C. § 924(e) (the “misapplication claim”).

(Docket #1 at 5–6).
Page 16 of 21

3.1

Burrage and Actual Innocence Claims

The Burrage claim and the actual innocence claim are closely related.
Both essentially argue that Mr. Stewart cannot be liable in light of Burrage,
because the Court did not find that the drugs supplied by Mr. Stewart were
a but-for cause of the victims’ deaths or, alternatively, that the drugs actually
were not the but-for cause of the deaths. In fact, the Court can see little
substantive difference between the two claims. Nonetheless, the Court must
construe his petition liberally, since he is appearing pro se. Ward v. Jenkins, 613
F.3d 692, 697 (2010).
Thus, because Mr. Stewart has pled two separate claims for relief, the
Court will assume that he intended to do so. As best as the Court can discern,
in the Burrage claim, Mr. Stewart may be attempting to have Burrage apply
retroactively to his case. Meanwhile, the actual innocence claim may relate
solely to what Mr. Stewart believes to be the fact that the drugs he sold did
not actually cause the victims’ deaths.
In that event, the Burrage claim still appears likely to be without merit.
That is because the courts that have considered such claims have generally
concluded that Burrage does not apply retroactively. See, e.g., In re: Carlos
Alvarez, No. 14-10661-D at 3; Bourlier, 2014 WL 6750674 at *2; Alvarez, 2014
WL 4385703 at *1; De La Cruz, 2014 WL 1883707 at *6; Taylor, 2014 WL
1256371 at *3; Powell, 2014 WL 5092762 at *2. Because the Court will
ultimately request further briefing in this case, it will not dismiss this claim
at this juncture.
Meanwhile, the actual innocence claim fails because it is not
recognized as a cognizable stand-alone claim. See, e.g., Herrera, 506 U.S. at
404; McQuiggin, 133 S.Ct. at 1931 (“We have not resolved whether a prisoner
Page 17 of 21

may be entitled to habeas relief based on a freestanding claim of actual
innocence.”). Thus, the Court can summarily dismiss the actual innocence
claim at this juncture.
3.2

Plea Agreement Claim

Mr. Stewart’s plea agreement claim may ultimately survive screening
(in the unlikely event that the Court determines his petition is not untimely
and not successive), but it is extremely weak.
Again, it is not absolutely clear what the nature of this claim is, but the
Court must construe it liberally. See Ward, 613 F.3d at 697. In full, Mr. Stewart
states that he:
was under an unlawful and present imminent and impending
threat of such a nature as to include a well grounded
apprehension of de[a]th or serious bodily injury as stated at his
change of plea hearing repeatedly told by counsel e[i]ther plea
out or you’ll get life.
(Docket #1 at 5). Mr. Stewart may be arguing that he did not enter his guilty
plea knowingly and voluntarily, perhaps because his counsel was ineffective
in assessing his potential sentence or perhaps because he was somehow
coerced into pleading guilty. (See Docket #1 at 5). Each of those potential
arguments faces significant hurdles.
If he is arguing that his counsel was ineffective or that he
misunderstood the potential for a life sentence, he likely will be unable to
prevail because a life sentence was, in fact, a distinct possibility that was
readily disclosed to Mr. Stewart. (See Docket #811 at 2 (noting guideline
range as 360 months to Life and statutory maximum as 20 years to Life;
moreover, if the defendant went to trial and was convicted, he would face the
loss of acceptance of responsibility credit as well as the potential additional

Page 18 of 21

enhancement for obstruction of justice, either or both of which would have
made a life sentence more likely); Docket #859 at 9:20–10:16 (noting potential
negative impact of going to trial), 15:22 (defendant acknowledging potential
for life imprisonment)).
If, on the other hand, he is arguing that he was somehow coerced into
accepting a guilty plea, he will also likely fail: at his plea colloquy, Mr.
Stewart was given an ample opportunity to speak and discussed the process
leading up to his plea agreement without mentioning any coercion; he
ultimately agreed that he was guilty of the charged offenses and that he
could not challenge his sentence if he was ultimately unhappy with his
sentence. (Docket #859 at 11:25–17:14, 19:6-19:13).
In either case, the Court is entitled to Mr. Stewart’s statements under
oath at his plea colloquy, see, e.g., United States v. Moody, 770 F.3d 577, 581–82
(7th Cir. 2014) (“There is no reason to disbelieve [defendant]’s sworn
statements and, thus, no reason to disturb his guilty plea.”) (citing United
States v. Messino, 55 F.3d 1241, 1248–49 (7th Cir. 1996); Hutchings v. United
states, 618 F.3d 693, 699 (7th Cir. 2010)), and those statements go a long way
towards showing that Mr. Stewart’s plea was valid as knowing and
voluntary.
The Court will not summarily dismiss this claim at this stage.
However, the Court cautions Mr. Stewart that, absent sufficiently detailed
new information, it would be difficult for the Court to conclude that there
was any issue with Mr. Stewart’s plea.
3.3

Misapplication Claim

Finally, there is Mr. Stewart’s misapplication claim. Again, the basis
for this claim is unclear. Mr. Stewart says of it, in full:
Page 19 of 21

the prior convictions used to enhance my punishment under
the career criminal act does not trigger the mandatory drug
amount of 26.2 grams that can be consistent with hearing a
federal felon[]y or serious drug offence the four sentencing act
does not apply higher sentences and it does not prohibit
lowering penalties.
(Docket #1 at 6). The Court must construe the claim liberally, though. See
Ward, 613 F.3d at 697. Doing so, it seems that he could be arguing that the
Court miscalculated his sentence by treating Mr. Stewart as a career criminal.
But there is no evidence that the Court did so. There is no mention of
the career criminal statute in Mr. Stewart’s judgment, plea agreement,
sentencing minutes, sentencing recommendation, or presentence report. (See
Docket #587, #810, #811, #860, #833). In fact, government counsel made clear
during Mr. Stewart’s plea hearing that he had agreed not to attempt to
enhance Mr. Stewart’s sentence with the facts of his prior convictions.
(Docket #859 at 25:10–26:6).
If Mr. Stewart is complaining about the computation of the drug
weight, he would also fail. He accepted the factual predicate of his plea
agreement, which provided a drug weight of 1 kilogram or more. (Docket
#587 at 2; Docket #859 at 12:18–14:25, 24:13–24:23).
Despite the fact that this claim seems to be meritless, the Court will
not summarily dismiss it. Perhaps Mr. Stewart will be able to clarify his
intention in further briefing.
4.

CONCLUSION
Mr. Stewart’s motion is on very thin ice. It appears untimely and

successive. Moreover, his claims appear to be without merit. However,
before denying his motion in its entirety, the Court will request further
briefing from the parties. Within 30 days of the entry of this order, the
Page 20 of 21

respondent should file a brief addressing the issues of timeliness,
successiveness, and the facial merits of Mr. Stewart’s claims. Thereafter, Mr.
Stewart shall file a response within 30 days. The respondent may then file a
reply within 14 days, if it wishes to do so. The Court will hold Mr. Stewart’s
motion in abeyance until it has received this further briefing.
Finally, the Court notes that Mr. Stewart has filed a motion for leave
to proceed in forma pauperis. (Docket #2). However, there is no charge
associated with filing a 28 U.S.C. § 2255 motion, so the Court will deny Mr.
Stewart’s motion for leave to proceed in forma pauperis as moot.
Accordingly,
IT IS ORDERED that within thirty (30) days of the entry of this
order, the respondent should file a brief addressing the issues of timeliness,
successiveness, and the facial merits of Mr. Stewart’s claims. Thereafter, Mr.
Stewart shall file a response within thirty (30) days. The respondent may
then file a reply within fourteen (14) days, if it wishes to do so.
IT IS FURTHER ORDERED that Mr. Stewart’s motion for leave to
proceed in forma pauperis (Docket #2) be and the same is hereby DENIED as
moot.
Dated at Milwaukee, Wisconsin, this 5th day of February, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 21 of 21