The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling following an evidentiary hearing regarding the Motion under § 2255 to Vacate, Set Aside or Correct Sentence (#1) filed by Petitioner, Alfred J. Gant. Following this court's careful review of the evidence presented at the hearing and the arguments of the parties, Petitioner's Motion (#1) is DENIED.
I. PETITIONER'S CRIMINAL CASE
Petitioner was charged by indictment in this court in Case No. 03-CR-20043. On November 19, 2003, Petitioner was found guilty, following a jury trial, of the offense of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). A presentence investigation report (PSR) was prepared prior to sentencing. The PSR stated that Petitioner was an Armed Career Criminal pursuant to 18 U.S.C. § 924(e)(1) and U.S.S.G. § 4B1.4 because he had four prior convictions for either a violent felony or a serious drug offense. The PSR stated that Petitioner's sentencing guideline range was 188 to 235 months of imprisonment. On April 14, 2004, this court held a sentencing hearing. Petitioner objected to his classification as an Armed Career Criminal, contending that the classification violated the Eighth Amendment's prohibition against cruel and unusual punishment. This court overruled the objection and adopted the PSR's findings. This court then sentenced Petitioner to 188 months of imprisonment.
Petitioner filed a Notice of Appeal and claimed, on appeal, that this court erred in two of its evidentiary rulings and in refusing to give a requested jury instruction. On January 12, 2005, while Petitioner's appeal was under consideration, the United States Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). On February 1, 2005, the Seventh Circuit rejected Petitioner's arguments and affirmed his conviction. United States v. Gant, 396 F.3d 906 (7th Cir. 2005). Petitioner filed a petition for rehearing, raising for the first time an argument under Booker. The Seventh Circuit denied the petition for rehearing on March 10, 2005.
II. FIRST MOTION UNDER § 2255 & RELATED PROCEEDINGS
On May 18, 2005, Petitioner filed a Motion under 28 U.S.C. § 2255 in Case No. 05-CV-5119. Petitioner claimed he did not have the necessary convictions to qualify him for sentencing as an Armed Career Criminal because his civil rights had been restored on two of the underlying convictions, his 1970 conviction and his 1974 conviction. Petitioner also claimed that the Government failed to prove to a jury beyond a reasonable doubt the existence of the prior convictions. Petitioner did not attach any supporting documentation regarding the restoration of his civil rights.
On July 18, 2005, this court denied the Motion, concluding that Petitioner's claims were procedurally defaulted because they were not raised on direct appeal. Petitioner filed a motion to reconsider and asked this court to allow him to amend his motion. This court granted Petitioner's request and directed him to file an amended Motion under § 2255. In his amended Motion, Petitioner claimed his trial counsel was ineffective for failing to investigate and challenge the prior convictions used to classify him as an Armed Career Criminal. Petitioner also claimed that his counsel was ineffective for failing to raise a timely Booker issue during his direct appeal. Petitioner further claimed that this court, rather than a jury, impermissibly made the factual determination of the existence of his prior convictions. Again, Petitioner did not attach supporting documentation regarding the restoration of his civil rights.
On March 28, 2006, this court entered an Opinion ruling on Petitioner's amended Motion under § 2255. This court rejected Petitioner's claim that his trial counsel provided ineffective assistance of counsel for failing to investigate or challenge his classification as an Armed Career Criminal and also rejected Petitioner's claim that this court engaged in impermissible fact-finding regarding Petitioner's prior convictions. This court concluded, however, that Petitioner's appellate counsel had been ineffective for failing to raise a timely Booker challenge to his sentence. This court therefore ordered that Petitioner would be resentenced. This court appointed new counsel, Harvey Welch, to represent Petitioner at the resentencing hearing.
On August 25, 2006, this court conducted a resentencing hearing and lowered Petitioner's sentence to 180 months of imprisonment. This was the statutory mandatory minimum sentence under 18 U.S.C. § 924(e). Following resentencing, Petitioner did not appeal the amended judgment.
On December 4, 2006, Petitioner filed a pro se Notice of Appeal in Case No. 05-CV-2119 which stated that he was appealing from the judgment entered on August 25, 2006. This court denied Petitioner's request for a certificate of appealability. On March 19, 2007, the Seventh Circuit dismissed Petitioner's appeal as untimely. The Seventh Circuit stated that the judgment in Case No. 05-CV-2119 was entered on March 28, 2006, so that the Notice of Appeal was over six months late. The Seventh Circuit stated that the appeal was also late as to the judgment entered on August 25, 2006, because a notice of appeal as to that judgment needed to be filed within 10 days of the judgment. On April 3, 2007, Petitioner filed a pro se Motion to Extend the Time for Filing the Notice of Appeal. Petitioner indicated that he wanted to appeal from this court's denial of two of the claims raised in his amended Motion under § 2255. Petitioner stated that, following the resentencing on August 25, 2006, his counsel "made it clear he would file a notice of appeal in order to preserve petitioner's appeal rights." Petitioner also claimed that he could not file a notice of appeal because he was held in transit and not returned to federal prison for more than 60 days following his resentencing.
On April 11, 2007, this court entered an Opinion which denied Petitioner's Motion to Extend Time. This court stated:
In this case, Petitioner is seeking to appeal this court's Opinion entered on March 28, 2006, in which this court rejected two of his three arguments regarding relief under 28 U.S.C. § 2255. This was a final Order of this court and terminated this case. Therefore, Petitioner's notice of appeal had to be filed within 60 days from the entry of that Opinion. See Fed. R. App. P. 4(a)(1)(B) ("[w]hen the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered."). Thus, Petitioner's time for filing his notice of appeal expired May 29, 2006. In addition, a motion for extension of time to file a notice of appeal had to be filed within 30 days of that date. See Fed. R. App. P. 4(a)(5)(A)(i). This time expired by June 28, 2006.
This court notes that, on August 25, 2006, this court entered an Order in this case setting out the sentence imposed in Petitioner's criminal case. However, the Order was entered solely to facilitate the ease of obtaining information in this case. That Order did nothing to extend the time for filing a notice of appeal, which had in any case already expired long before the entry of the Order. P e titioner's Motion to Extend Time for Filing his Notice of Appeal was filed much too late and must be denied. This court additionally notes that the excuses Petitioner has given for failing to file a timely notice of appeal are clearly inadequate to show "excusable neglect or good cause." The time for filing an appeal from this court's March 28, 2006, Opinion expired long before Mr. Welch purportedly told him that Mr. Welch would be filing a notice of appeal (which presumably would have been filed in the criminal case, because Mr. Welch was appointed to represent Petitioner at sentencing in the criminal case). Further, Petitioner clearly was capable of filing documents with the court wherever he was housed.
III. SECOND MOTION UNDER § 2255
On May 10, 2007, Petitioner filed a new Motion under § 2255 to Vacate, Set Aside or Correct Sentence (#1) in this case. Petitioner raised three grounds for relief. He argued that, on resentencing, this court was without jurisdiction to sentence him as an Armed Career Criminal because he does not have the required prior convictions. He also argued that his counsel was ineffective at resentencing because he failed to investigate his prior convictions. In addition, Petitioner argued that his counsel was ineffective for failing to file a notice of appeal when he asked counsel to do so. In support of his first argument, Petitioner stated that, in January 2007, he received certified copies of his original master file from the Illinois Department of Corrections (IDOC). Petitioner argued that these documents showed that all of his rights had been restored following the successful completion of his sentence and term of supervision on two of his prior convictions. Petitioner argued that this left only two prior felonies so he did not qualify for enhancement as an Armed Career Criminal.
Petitioner attached documents in support of this argument. The first document was on IDOC letterhead and stated that copies were made from the master file of Alfred Jones Gant, A-56066, Date of Birth 07-31-1946, Discharged 10-13-1995, from the East Moline Correctional Center. The documents included a "Parole or Mandatory Supervised Release Agreement," which was dated February 24, 1995, and was signed by Petitioner. This agreement set out rules of conduct governing adult parolees and mandatory supervised releasees and included the statement that "You shall not own, possess, use, sell, or have under your control any firearms or other dangerous weapons." The documents also included a document entitled "Discharge from Parole/Mandatory Supervised Release" which stated that Petitioner had completed the maximum of his sentence on 2-24-95 and also stated "we are pleased to inform you of the restoration of all your rights."
On June 11, 2007, the Government filed its Response to Petitioner's Second Motion under 28 U.S.C. § 2255 (#3). On June 14, 2007, this court entered an Opinion (#4) which dismissed Petitioner's Motion under § 2255 for ...