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Nesby v. United States

July 25, 2007

LARRY ANTHONY NESBY, PETITIONER/DEFENDANT,
v.
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.



The opinion of the court was delivered by: Gilbert, District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Larry Anthony Nesby's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Court granted Nesby leave to amend his motion on August 28, 2006 (Doc. 9), and the government responded to his amended motions on September 25, 2006 (Doc. 10). For the following reasons, the Court will DENY Nesby's petition.

BACKGROUND

On October 3, 2002, this Court sentenced Nesby to life imprisonment after a jury found him guilty of conspiring to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. The Seventh Circuit affirmed his sentence on appeal and the Supreme Court denied his petition for certiorari on October 6, 2003. Nesby filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on October 4, 2004.

In his October 4, 2004 motion, Nesby claims his trial counsel, David Williams, was constitutionally ineffective for failing to argue against the weight of the drugs introduced by the government, failing to raise an Apprendi issue regarding sentencing enhancements at the beginning of the trial (leading to the lack of an evidentiary hearing), failing to challenge the delay between his arrest and arraignment given the alleged invalidity of the arrest warrant, and failing to challenge the government's "Open File" policy.

Nesby filed another motion under § 2255 on November 10, 2004, which the Clerk of Court docketed as a separate case, Nesby v. United States, No. 04-4235 (S.D. Ill. 2004). In this petition, Nesby contends that the Court unconstitutionally considered the government's sentencing enhancements under 21 U.S.C. § 851. Nesby believes a jury should have found these convictions to be felony drug convictions beyond a reasonable doubt. Nesby also contends that "a major Conflict of Interest" existed between he and his counsel at trial. According to Nesby, he relayed "vital information to defense counsel for a defense and counsel" disregarded it. (Doc. 4 at 4). Other asserted unconstitutionally defective errors made by trial counsel included his deficient arguments in support of Nesby's motion to sever, his failure to challenge the sufficiency of the indictment and the warrant in this case, and his failure to challenge allegedly coerced and unreliable testimony from co-conspirators and police. Finally, Nesby claims that the Assistant United States Attorney that prosecuted the case, Mike Carr, committed prosecutorial misconduct by using statements made by an unindicted co-conspirator while under the influence of marijuana.

On April 27, 2005 and June 29, 2005, Nesby filed motions for leave to amend his § 2255 in the latter case (Docs. 3, 4). On August 31, 2005, the Court consolidated the two cases. In its order directing the government's response to Nesby's consolidated petition, the Court allowed Nesby's amendments. In his supplemental pleadings, Nesby contends Williams failed to make sure the substances offered against him were crack, failed to challenge the chain of custody in the case, and that newly discovered evidence shows that the government's expert lied on the stand.

After the government filed its response, Nesby filed two pleadings that he titled Traverses, a motion for additional discovery, and a motion for recusal. After the Court either denied or reserved ruling on these motions (Doc. 15), he filed a motion to reconsider (Doc. 16).

ANALYSIS

The Court must grant a § 2255 petition when a petitioner's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. "Habeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations[,]" Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996), and is available only if an error is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (internal quotation marks omitted).

I. Statute of Limitations

Motions under § 2255 are subject to a one-year period of limitations that begins to run from the latest of

1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented ...


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