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Kimothy Owens v. United States of America

September 24, 2012


The opinion of the court was delivered by: Michael P. McCUSKEY U.S. District Judge


Monday, 24 September, 2012 04:38:44 PM Clerk, U.S. District Court, ILCD


On March 26, 2012, Petitioner, Kimothy Owens, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1). Petitioner claimed that he was entitled to relief because he was not sentenced under the Fair Sentencing Act of 2010 (FSA) and because his appointed counsel did not file a motion to suppress evidence, thereby denying him the effective assistance of counsel. On April 25, 2012, the Government filed its Response to Petitioner's Motion (#3). The Government argued that Petitioner's Motion was filed beyond the one-year time limitation of 28 U.S.C. § 2255 and should be denied. On May 7, 2012, Petitioner filed a Reply (#4). Following careful consideration, this court concludes that Petitioner's Motion is untimely. This court further concludes that the Motion has no merit. For both reasons, Petitioner's Motion (#1) is DENIED.


On March 3, 2009, in Case No. 09-20019, Petitioner was charged by indictment with the offenses of: (1) knowingly possessing five grams or more of a mixture and substance containing cocaine base (crack), a Schedule II substance, with the intent to distribute it; and (2) knowingly possessing a firearm after having previously been convicted of a felony offense. Petitioner was found to be qualified for appointed counsel, and John Taylor of the Federal Defender's office was appointed to represent him. On May 8, 2009, Petitioner's counsel filed pre-trial motions, including a Motion to Suppress Search Warrant. In the Motion to Suppress, Petitioner's counsel stated that Petitioner was arrested following a search conducted pursuant to a search warrant. Petitioner's counsel stated that "[t]here are substantial questions as to the validity of that search warrant as it is not clear that it was signed by a judge." On May 26, 2009, the Government filed responses to Petitioner's motions. In its response to the Motion to Suppress, the Government stated that it believed "this single, unique factual question can be addressed by the testimony of Detective Dailey, with possible additional evidence in the form of an affidavit from Judge Webber."

On May 27, 2009, this court held a status conference. This court stated that the Motion to Suppress would be taken up at the scheduled jury trial. On May 29, 2012, this court ruled on Petitioner's other pre-trial motions and accepted the Government's agreement to impeach Petitioner's testimony, if he chose to testify, solely with evidence that he had two prior convictions, without mentioning the nature of the convictions.

On June 15, 2009, the case proceeded to jury trial. This court stated that it would take up the matter of the Motion to Suppress after jury selection and before the presentation of evidence in the trial. Voir dire was conducted and a jury was selected. This court then held an evidentiary hearing on the Motion to Suppress Warrant. The Government filed the Affidavit of Judge A. G. Webber. In his Affidavit, Judge Webber stated that he is a sitting judge of the Sixth Judicial District of Illinois and was a sitting judge on January 28, 2009. Judge Webber stated that, on January 28, 2009, Detective David Dailey of the Decatur, Illinois, Police Department appeared before him and presented him with a "Complaint for Search Warrant" and "Search Warrant." Judge Webber stated that he read and examined the "Complaint for Search Warrant" and then swore Detective Dailey, who signed the "Complaint for Search Warrant" in his presence. Judge Webber stated that he determined that probable cause existed for the issuance of a search warrant for Petitioner's person and the specified real estate located in Decatur. Judge Webber stated that he then signed the "Search Warrant." The Government also presented the testimony of David Dailey. Dailey testified that he presented a complaint for search warrant to Judge Webber and signed the complaint in Judge Webber's presence after Judge Webber swore him in. Dailey testified that Judge Webber then signed the search warrant. The complaint for search warrant and search warrant were admitted into evidence. This court then discussed the evidence presented and concluded that Judge Webber signed the search warrant based upon probable cause. This court denied Petitioner's Motion to Suppress.

On June 16, 2009, Petitioner advised the court that he wanted to plead guilty. Following a lengthy and thorough colloquy, the court accepted Petitioner's guilty plea. Petitioner later filed a pro se motion to withdraw his guilty plea. On September 29, 2009, this court held a hearing and denied Petitioner's pro se motion. On January 8, 2010, a sentencing hearing was held and Petitioner was sentenced to a term of 140 months on Count 1 and 120 months on Count 2, to be served concurrently. Petitioner filed a Notice of Appeal. On November 23, 2010, the Seventh Circuit entered an Order and affirmed this court's judgment. On November 10, 2011, this court entered an order and reduced Petitioner's sentence to 120 months based upon the retroactive amendments to the sentencing guidelines regarding crack cocaine.

On November 18, 2011, Petitioner filed a pro se Motion for an Extension of Time to file a Motion under 28 U.S.C. § 2255. Petitioner stated that he needed more time to file his § 2255 motion. This court entered an Opinion the same day and denied Petitioner's pro se Motion. This court stated that, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a motion under § 2255 must be filed within one year of the date on which the conviction became final. This court concluded that it had no authority to extend this deadline and grant Petitioner the relief he requested.


On March 26, 2012, this court received and filed Petitioner's pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1). As noted, Petitioner claimed that he should have been sentenced under the FSA and that he was denied the effective assistance of counsel because his counsel refused to file a motion to suppress evidence. As to his second claim, Petitioner argued that he was arrested illegally and the court should have excluded all evidence gained from the "warrantless search of the residence." Petitioner further argued that the officers did not have consent to enter the premises or search the room. Petitioner signed the Motion and dated it "November 22, 2011." Petitioner also attached a proof of service which stated that he mailed the motion to the court on November 22, 2011.

On April 25, 2012, the Government filed its Response (#3). The Government stated that the Seventh Circuit entered its judgment affirming Petitioner's conviction and sentence on September 1, 2010, and Petitioner did not file a petition for a writ of certiorari with the United States Supreme Court. The Government stated that Petitioner's conviction was final 90 days after the Seventh Circuit entered its judgment. The Government then concluded that Petitioner's one-year time period to file his Motion under § 2255 expired on November 30, 2011, so his Motion was filed almost four months too late.

On May 7, 2012, Petitioner filed his Reply (#4). Petitioner said that the Government's argument was frivolous because he had his motion done and put in the mail on time. He said there was a memo posted at the prison which stated there was a hold up on outgoing mail. ...

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