The opinion of the court was delivered by: Reagan, District Judge
On August 23, 2002, a jury found Seals guilty of bank robbery and using or carrying a firearm during and in relation to a crime of violence(No. 01-cr-30140, Docs. 175 & 176). On December 3, 2002, this Court imposed a sentence of 360 months incarceration, 5 years supervised release, a special assessment of $200, and restitution of $42,169.87 (No. 01-cr-30140, Doc. 213). This Court enhanced Seals's sentence after it found that he was a career offender under §4B1.1 of the Sentencing Guidelines. On direct appeal, Seals challenged evidentiary rulings made by this Court, hiscareer offender status, 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 rulings and the order of restitution, but ordered a limited remand regarding Seals'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 Seventh Circuit that Seals's sentence would have been no different had he been sentenced after United States v. Booker, 543 U.S. 220 (2005) (No. 01-cr-30140, Doc. 283). On March 2, 2006, the Seventh Circuit affirmed Seals's sentence. United States v. Seals, 170 Fed. Appx. 421 (7th Cir. 2006).
On May 1, 2006, the Supreme Court denied Seals's petition for a writ of certiorari. Seals v. United States, 126 S.Ct. 1933 (2006). The Supreme Court denied Seals's request for rehearing on June 5, 2006. Seals v. United States, 126 S.Ct. 2376 (2006).
On February 5, 2008, Seals filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Seals claims that Amendment 709 to the Sentencing Guidelines, which became effective November 1, 2007, altered how career offender status is calculated such that he should be resentenced (Doc. 1-2, 3). Specifically, since "there was no intervening arrest; the offenses were in the same charging instrument; and the sentences were imposed on the same day," he argues that he could not be considered a career criminal and his sentence should therefore be reduced (Doc 1-2, p. 4).
On November 26, 2008, this Court directed the Government to respond to Seals's argument, as well as address the timeliness of Seals's § 2255 motion.*fn1 On December 4, 2008, the Government filed its response, arguing that Seals's motion is time-barred under § 2255(f), which generally imposes a one-year statute of limitations on such motions, depending on the date of certain triggering events. The Government argues that the statute of limitations expired a year after Seals's judgment of conviction became final, which makes Seals's motion untimely.
Seals, however, contends that his motion is timely under 28 U.S.C. § 2255(f)(4). Seals claims that he is entitled to file his motion within one year from the date of discovering new facts supporting his claim, rather than simply within one year of the date on which the judgment against him became final. In the alternative, if Amendment 709 is not considered a "new fact" supporting his claim, he suggests that equitable tolling should apply.
For the reasons explained below, the Court DENIES Seals's motion.
The Court first notes that it does not appear that Seals's sentence can be challenged under § 2255 because Amendment 709 is a substantive amendment rather than a clarifying amendment. "This distinction is critical because substantive amendments to the guidelines may be challenged pursuant to 18 U.S.C. 3582(c)(2)" rather than under 28 U.S.C. § 2255, which applies only to clarifying amendments. United States v. Snyder, 2008 WL 370663, at *3 (N.D. Ind. Feb. 11, 2008). But Amendment 709 appears to be substantive, because it "alters the way that certain prior convictions may be counted in calculating a defendants's Criminal History Category-it did not merely clarify the interpretation or application of the existing guidelines." Id. Accordingly, it appears that Seals's § 2255 motion is not an appropriate mechanism by which to raise the instant challenge to his sentence.
However, even if the Court were to find that Seals could raise this issue under § 2255, the motion is untimely. A one-year statute of limitations applies to any motion to vacate, set aside, or correct a sentence under § 2255. This one-year limitation runs from the latest of four events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by the governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented ...