Allen v. United States of America

Filing 3

ORDER signed by Judge J.P. Stadtmueller on 6/2/2017: DENYING as moot 2 Petitioner's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DENYING 1 Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Section 2255; DISMISSING action with prejudice; and DENYING Certificate of Appealability. (cc: all counsel, via mail to Preston D. Allen at Leavenworth USP) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PRESTON D. ALLEN,
Petitioner,

v.

UNITED STATES OF AMERICA,

Case No. 17-CV-753-JPS-JPS
Criminal Case No. 15-CR-229-JPS

Respondent.

ORDER

Petitioner Preston D. Allen (“Allen”) pled guilty to a single count of
distributing crack cocaine. See United States v. Preston Allen, Case No. 15CR-229 (E.D. Wis.) (Judgment, Docket #23). On June 3, 2016, the Court
sentenced Allen to a term of 60 months’ imprisonment. Id. Allen did not
appeal. On May 30, 2017, Allen filed a motion to vacate his sentence,
pursuant to 28 U.S.C. § 2255. (Docket #1).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.

Allen also filed a motion for leave to proceed in forma pauperis. (Docket #2).
However, there is no fee to initiate 28 U.S.C. § 2255 proceedings, and so that
motion is not necessary. The Court will, therefore, deny it as moot.
1

Allen’s motion advances a single ground for relief. At sentencing, his
offense level was enhanced by two levels because he possessed a firearm
while committing the drug offense for which he was charged. Case No. 15CR-229, (Revised Presentence Investigation Report, Docket #19; Sentencing
Hearing Minutes, Docket #22). Allen believes that this was based on a
pending state charge for firearm possession. (Docket #1 at 6-7). That charge
was later dismissed. Id. Allen contends that the state prosecutor’s dismissal
of the charge “makes me factually innocent of the possession of a firearm,”
and that the enhancement is therefore improper. Id. at 7.
The Court need not address the obvious procedural failing in Allen’s
motion—he never appealed his sentence—because it is based on an
erroneous factual assumption. The Court’s imposition of the firearm
enhancement was not based on the pending state charge. As the
presentence report in his criminal case explained, multiple confidential
informants saw Allen carrying a gun while distributing crack cocaine. Case
No. 15-CR-229, (Docket #19 at ¶¶ 10, 13, 16, 19). These facts, and not any
state prosecution, are what laid the foundation for the firearm
enhancement. Id. ¶ 27. Further, Plaintiff is incorrect that the mere dismissal
of the state charge “makes [him] factually innocent” of possessing a firearm.
A prosecution may be dismissed for a host of reasons having nothing to do
with the accused’s guilt or lack thereof. Even acquittal at trial does not
prove innocence; it merely reflects an inability to establish guilt beyond a
reasonable doubt. Pulungan v. United States, 722 F.3d 983, 985 (7th Cir.

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2013).2 It is plain that Allen is not entitled to relief, and so his motion must
be dismissed.
Under Rule 11(a) of the Rules Governing Section 2255 Cases, “the
district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Allen must make a “substantial
showing of the denial of a constitutional right” by establishing that
“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.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations omitted). As
the Court discussed above, no reasonable jurists could debate whether
Allen’s motion stated a cognizable claim under Section 2255 because its
only ground for relief was based on a demonstrably false assumption. As a
consequence, the Court is compelled to deny a certificate of appealability
as to Allen’s motion.
Finally, the Court closes with some information about the actions
that Allen may take if he wishes to challenge the Court’s resolution of this
case. This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30 days of the entry

Allen’s state case included charges for battery and recklessly endangering
safety, as well as being a felon in possession of a firearm. See State of Wisconsin v.
Preston Donnell Allen Jr., 2015-CF-4785, Milwaukee County Circuit Court, available
at: https://wcca.wicourts.gov/. The publicly-available court records indicate that
his case was dismissed without prejudice in light of this Court’s sentence and
because the alleged victim of Allen’s crimes refused to cooperate in the
prosecution. Id., Court Record Events, June 20, 2016. This gives no basis to infer
that the dismissal was based on Allen’s actual innocence of firearm possession.
2

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of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline
if a party timely requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline. See Fed. R. App. P.
4(a)(5)(A). Moreover, under certain circumstances, a party may ask this
Court to alter or amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed
within 28 days of the entry of judgment. The Court cannot extend this
deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The court cannot extend this
deadline. See id. A party is expected to closely review all applicable rules
and determine what, if any, further action is appropriate in a case.
Accordingly,
IT IS ORDERED that Petitioner’s motion to proceed in forma
pauperis (Docket #2) be and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that Petitioner’s motion to vacate, set
aside, or correct his sentence pursuant to Section 2255 (Docket #1) be and
the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin, this 2nd day of June, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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