Gearnhardt v. United States of America

Filing 2

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 7/13/2020. 1 Petitioner's motion to vacate, set aside or correct sentence under §2255 DISMISSED as second or successive petition. (cc: all counsel, via mail to John Gearnhardt)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JOHN P. GEARNHARDT,
Petitioner,
Case No. 17-cv-344-pp
v.
UNITED STATES OF AMERICA
Respondent.

ORDER SCREENING MOTION TO VACATE, CORRECT OR SET ASIDE
SENTENCE UNDER 28 U.S.C. §2255 (DKT. NO. 1) AND DISMISSING AS A
SECOND OR SUCCESSIVE PETITION

I.

Background
In January 2013, a grand jury returned a second superseding indictment

charging the petitioner and six co-defendants with conspiring to distribute
heroin resulting in death. United States v. John P. Gearnhardt, Case No. 12-cr217-WCG, Dkt. No. 86 (E.D. Wis. Jan. 15, 2013). A little over a year later, the
United States Attorney signed a superseding information charging the
petitioner and five co-defendants with conspiring to distribute heroin. Id. at
Dkt. No. 151. The petitioner waived indictment, id. at dkt. no. 161, and on
February 19, 2014—the same day the superseding information was signed—
the petitioner pleaded guilty to the charge in the superseding information, id.
at 167. Four months later, on June 10, 2014, Judge Charles N. Clevert
sentenced the petitioner to serve 114 months in custody and three years’
supervised release. Id. at 217.
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On August 17, 2015, the petitioner filed an unopposed motion to reduce
his sentence under Amendment 782 to the sentencing guidelines. Dkt. No. 288.
Judge Clevert ordered the petitioner’s sentenced reduced to ninety-one months
imprisonment. Id. at Dkt. No. 293. Separately, the petitioner filed a motion to
vacate the June 2014 sentence. Id. at Dkt. No. 274 (opened as Civil Case 15cv-746, Gearnhardt v. United States). The motion to vacate alleged that the
petitioner’s attorney had provided ineffective assistance of counsel by failing to
object when Judge Clevert relied on testimony from the victim’s mother despite
the petitioner not pleading guilty to the conspiracy that resulted in the victim’s
death. Gearnhardt v. United States, Case No. 15-cv-746, Dkt. No. 1 at 6-7
(E.D. Wis. June 19, 2015). A year later, Judge Clevert granted the motion and
vacated the petitioner’s sentence after the government filed a brief conceding
that a due process violation had occurred at sentencing. Id. at Dkt. No. 18 at 4
(E.D. Wis. June 8, 2016).
Based on the motion to vacate, Judge Clevert re-sentenced the petitioner
on September 27, 2016. Id. at Dkt. No. 331. He reduced the petitioner’s
sentence to eighty-eight months’ imprisonment followed by three years of
supervised release. Id. The clerk issued an amended judgment on October 3,
2016. Id. at Dkt. No. 332. The petitioner appealed, but the Seventh Circuit
dismissed the appeal as untimely and returned the mandate on March 7, 2017.
Id. at Dkt. No. 344.
Two days after the mandate issued, the petitioner filed this motion to
vacate his sentence under 28 U.S.C. §2255. Gearnhardt v. United States, Case
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No. 17-cv-344, at Dkt. No. 1 (E.D. Wis. Mar. 9, 2017). The motion alleges
ineffective assistance of counsel, arguing that the petitioner directed his
attorney to file an appeal, but that the attorney failed to do so. Id. at 4. The
petitioner observes that the Seventh Circuit eventually dismissed his appeal as
being untimely. Id. The petitioner does not indicate what he wanted his lawyer
to argue on appeal.
II.

Analysis
The first thing a court must do in a proceeding under §2255 is review—or

“screen”—the motion. Rule 4 of the Rules Governing Section 2255 proceedings
provides:
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. 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. A petitioner seeking relief under
§2255 must allege either that the sentence violated the Constitution or laws of
the United States, that the court was without jurisdiction, that the sentence
exceeded the maximum authorized by law or that the sentence is otherwise
subject to collateral attack. 28 U.S.C. §2255(a). A person seeking relief under
§2255 must file his petition within one year of the date on which the judgment
of conviction became final, the date on which any impediment to making a
motion was removed (if the movant was prevented from filing his motion by
government action), the date on which the right the petitioner asserts was

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recognized by the Supreme Court (if it is a newly recognized right) or the date
on which the facts supporting the claim or claims could have been discovered
through the exercise of due diligence. 28 U.S.C. §2255(f). If a petitioner already
has filed on §2255 petition, he cannot file a second or successive petition
unless the Seventh Circuit certifies, under 28 U.S.C. §2244, that the motion
contains either “newly discovered evidence that, if proven and viewed in the
light of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense” or “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.”
The petitioner timely filed this §2255 petition, by filing it two days after
the Seventh Circuit issued the mandate. This is, however, his second §2255
petition. As noted above, he filed a §2255 petition in June 2015, challenging
his sentence and alleging that his attorney was ineffective. Gearnhardt v.
United States, 15-cv-746-CNC (E.D. Wis.). The claim the petitioner raises in
this petition—that his lawyer was ineffective in failing to timely file an appeal
from the sentence Judge Clevert imposed on September 27, 2016—was not
raised in his prior petition; it couldn’t have been. This court first must
determine whether “the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence” and whether “the
facts underlying the claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that,
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but for constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.” If the factual predicate could have
been discovered previously with due diligence and the facts underlying the
claim would not show by clear and convincing evidence that but for a
constitution error no reasonable factfinder would have found the petitioner
guilty, the court must dismiss the petition under 28 U.S.C. §§2244(b)(2)(B) and
2255(h).
The petitioner could not have discovered the facts relating to his
counsel’s failure to file his appeal by the time he filed his first §2255 petition.
He filed the first petition fifteen months before Judge Clevert amended his
sentence on September 27, 2016, and the amended judgment was not entered
until October 3, 2016. Dkt. Nos. 331, 332.
But the court cannot conclude that the facts underlying the claim the
petitioner raises in this second petition would be sufficient to establish by clear
and convincing evidence that, but for a constitutional error, no reasonable
factfinder would have found him guilty of the offense of conspiring to distribute
heroin. First, the defendant admitted to committing the offense. He admitted it
when he signed the plea agreement on February 17, 2014. Dkt. No. 154 at 13.
He admitted it when he appeared before Judge Clevert on February 19, 2014
and entered his plea. Dkt. No. 167 at 1.
Second, the petitioner’s assertions about what happened between him
and his lawyer regarding his desire to appeal the September 2016 sentence are
contradicted by the record. The petitioner says that “[d]irectly following” the
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resentencing, he “told his Attorney that he did not know if he wanted to
appeal;” he says his lawyer agreed to wait until the petitioner decided. Dkt. No.
1 at 4. The docket, however, shows that on September 28, 2016, the court
received a letter from Attorney Joel A. Mogren, indicating that he had spoken
with the defendant after the resentencing hearing and that he was informed by
the petitioner that the petitioner “did not wish to exercise his appellate rights.”
United States v. Gearnhardt, Case No. 12-cr-217, Dkt. No. 330 (E.D. Wis. Sep.
28, 2016).
The petitioner says that within ten days of the September 27, 2016
resentencing hearing, he told his lawyer he wanted the lawyer to file a notice of
appeal, but the lawyer didn’t do so. Gearnhardt v. United States, 17-cv-344,
Dkt. No. 1 at 4. But the petitioner did not seek an extension of time to file his
notice of appeal, and the court did not receive his pro se notice of appeal until
November 29, 2016—two months after the resentencing hearing. United States
v. Gearnhardt, Case No. 12-cr-217, Dkt. No. 335 (E.D. Wis.). Under Fed. R.
App. P. 4(b)(1)(A), the defendant needed to file his notice of appeal within
fourteen days of the October 3, 20161 entry of judgment—that is, by October
17, 2016.
Third, the petitioner does not say in his petition what issues he wanted
his attorney to raise on appeal. The court assumes, however, that he wanted
his attorney to raise the issue the petitioner identified in the docketing

The Seventh Circuit indicated that the amended judgment was entered on
October 4, 2016. Dkt. No. 344 at 2. This appears to have been an error.
1

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statement he filed with the notice of appeal. Id. at Dkt. No. 336. In the
docketing statement, the petitioner asserted that “[t]he sentence imposed after
vacatur was unreasonable as Petitioner was initially held responsible for a
death, and after setting aside same, received only a 3 month reduction.” Id. at
1. It is true that at the resentencing hearing, the defendant’s lawyer asked for a
sentence of time served (as of that date, forty-six months and nineteen days—
just shy of four years). United States v. Gearnhardt, 12-cr-217 at Dkt. No. 331,
p. 2. The government asked the court to keep the sentence at ninety-one
months. Id. Judge Clevert acknowledged the defendant’s good conduct while in
prison and agreed that the defendant likely had been deterred but concluded
that the seriousness of the crime did not warrant a sentence of time served. Id.
at 3.
The defendant did not challenge his guilt in his attempted appeal. He
argued only that Judge Clevert should have reduced his sentence more than
three months. That argument does not establish by clear and convincing
evidence that no reasonable factfinder would have found the defendant guilty of
the underlying conspiracy.
The court must dismiss the petition as a second or successive petition
under 28 U.S.C. §§2244(b)(2)(B)(ii) and 2255(h).
Under Rule 11(a) of the Rules Governing Section 2255 Proceedings, “the
district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. A court may issue a certificate of
appealability only if the applicant makes a substantial showing of the denial of
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a constitutional right. See 28 U.S.C. §2253(c)(2). The standard for making a
“substantial showing” is whether “reasonable jurists could debate whether (or
for that matter, agree that) the petitioner 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. 472, 484
(2000) (internal quotations omitted). The court declines to issue a certificate of
appealability, because reasonable jurists courts not debate that the petition
was a second or successive petition which required authorization from the
Seventh Circuit Court of Appeals.
The court ORDERS that the petition is DISMISSED. Dkt. No. 1.
Dated in Milwaukee, Wisconsin this 13th day of July, 2020.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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