IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
November 26, 2008
EDWARD SEALS, PETITIONER/DEFENDANT,
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.
The opinion of the court was delivered by: Reagan, District Judge
MEMORANDUM AND ORDER
This matter is before Court for a preliminary review of Petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. See Rule 4(b) of the Rules Governing § 2255 Proceedings in the United States District Courts. This Court must summarily dismiss the instant motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings, that the moving party is not entitled to relief." Id.
On August 23, 2002, Petitioner was found guilty, after a jury trial, of bank robbery and using a firearm during and in relation to a crime of violence. United States v. Seals, No. 01-cr-30140 (S.D. Ill.) (Jury verdicts C and D, Docs. 175 and 176). On December 3, 2002, this Court imposed a sentence of 360 months incarceration, 5 years supervised release, a special assessment of $200.00 and restitution of $42,169.87. Id. (Doc. #213). Petitioner's sentence was enhanced because the Court found that he was a career offender under § 4B1.1 of the Sentencing Guidelines. On direct appeal, Petitioner challenged evidentiary rulings made by the Court, his § 4B1.1 sentence enhancement, and the order of restitution. See United States v. Seals, 419 F.3d 600 (7th Cir. 2005). The Seventh Circuit affirmed the Court's evidentiary ruling and the order of restitution, but ordered a limited remand to this Court regarding Petitioner's sentence in light of United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). Id. at 610.
On remand, this Court advised the Court of Appeals that Petitioner's sentence would have been no different had Petitioner been sentenced after United States v. Booker, 543 U.S. 220 (2005). United States v. Seals, No. 01-cr-30140 (S.D. Ill.) (Memorandum and Order, Doc. 283). On March 2, 2006, the Seventh Circuit affirmed Petitioner's sentence. United States v. Seals, 170 Fed. Appx. 421 (7th Cir. 2006).
On May 1, 2006, the Supreme Court of the United States denied Petitioner's application for a writ of certiorari. Seals v. United States, 126 S.Ct. 1933 (2006). On June 5, 2006, the Supreme Court denied Petitioner's request for a rehearing. Seals v. United States, 126 S.Ct. 2376 (2006).
On February 2, 2008, Petitioner filed the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. In his motion, Petitioner asserts only one ground for relief: that based on changes made to the Sentencing Guidelines in November 2007, he is no longer considered a career offender and, therefore, his sentence should be accordingly reduced.
The Court ORDERS the Government to file a response to Petitioner's motion within THIRTY (30) DAYS of the date of this Order. The Government shall, as part of its response, attach all relevant portions of the record. Additionally, the Government shall specifically address whether Petitioner's § 2255 motion is timely filed.
IT IS SO ORDERED.
MICHAEL J. REAGAN United States District Judge
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