Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

James A. Morning v. United States of America

September 25, 2012

JAMES A. MORNING, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

MEMORANDUM & ORDER

Before the Court is petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), to which the government has filed a response (Doc. 12). Also before the Court is petitioner's supplement (Doc. 3), objection to the government's response (Doc. 13), amended petition (Doc. 18), the government's response to the amended petition (Doc. 19), and petitioner's traverse (Doc. 20).

BACKGROUND

Petitioner was found guilty, after a jury trial, of: (1) conspiracy to possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846; (2) possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1); and (3) possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). United States v. Morning, Case No. 94-cr-30013 (S.D. Ill.). Petitioner was sentenced to a total of 324 months imprisonment. Petitioner's convictions and sentences were affirmed on direct appeal. United States v. Billops, 43 F.3d 281 (7th Cir. 1994). On March 10, 2009, Petitioner moved for a reduction in his crack cocaine sentence pursuant to 18 U.S.C. § 3582(c)(2) based on a sentencing guideline that had been lowered and made retroactive by the United States Sentencing Commission. United States v. Morning, No. 94-30013 (S.D. Ill.). On March 18, 2009, the Court granted Petitioner's motion and his total sentence was reduced to 300 months imprisonment. It appears that Petitioner has not previously sought relief pursuant to 28 U.S.C. § 2255.

In the instant § 2255 motion, Petitioner challenges his conviction and sentence for possessing a firearm during and in connection with a drug trafficking crime in violation of 18 U.S.C. § 924(c). He asserts two claims: (1) that his lawyer was ineffective;*fn1 and (2) in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995), he is "actually innocent" of violating 18 U.S.C. § 924(c) because he did not "use" the firearm during or in connection with a drug trafficking crime, which, he asserts, requires proof of "active employment" of the firearm, and more than mere possession. Petitioner contends that the only evidence presented at trial applicable to this charge was that a pistol was found on the headboard of a bed and five other firearms were located throughout the house. Petitioner contends that this evidence was insufficient - after Bailey - to convict him under § 924(c).

Petitioner's conviction became final, for purposes of § 2255, on March 16, 1995, when the time for Petitioner to seek a writ of certiorari to the Supreme Court of the United States expired. Clay v. United States, 537 U.S. 522, 525 (2003). Because the petitioner's conviction became final before April 24, 1996, he was required to file his § 2255 motion on or before April 24, 1997.*fn2 Petitioner filed the instant § 2255 motion on April 1, 2009, nearly twelve years too late. Unless the Court can find a later, applicable start date, petitioner's § 2255 motion must be dismissed as time barred.

ANALYSIS

I. Timeliness of Motion

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified at 28 U.S.C. § 2255, established a one-year limitation period for filing a motion for relief pursuant to 28 U.S.C. § 2255:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall 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 from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f) (2008).

A. Petitioner's Resentencing Did Not Restart the Clock for § 2255 Statute of Limitation Purposes

To the extent that petitioner asserts that the statute of limitations period restarted because of his resentencing pursuant to 28 U.S.C. § 3582, and his petition is, therefore, timely, he is mistaken. Pursuant to 18 U.S.C. § 3582(b), "[n]otwithstanding the fact that a sentence to imprisonment can subsequently be . . . modified pursuant to the provisions of subsection (c) . . . a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes." Petitioner's conviction and sentence, therefore, became final upon completion of direct review. See United States v. Steele, No. 97 C 7040, 1998 WL 26173, at *1 (N.D.Ill. January 15, 1998).

Although research did not reveal Seventh Circuit authority directly addressing this issue, a number of other courts have "held that a reduction of sentence under § 3582(c) does not affect the finality of the judgment of conviction." United States v. Thomas, No. 03-0257, 2012 WL 3062705, at *4 (E.D.La. July 25, 2012); accord Turner v. United States, No. 10-0413-CG-C, 2012 WL 2088767, at *3 (S.D. Ala. February 16, 2012); Duckett v. United States, No. 4:09cv589, 2012 WL 489206, at *1 (E.D. Tex. February 15, 2012); Williams v. United States, No. 6:10-cv-1549-Orl-31GJK, 2012 WL 398245, at *2 (M.D.Fla. Feb. 8, 2012); United States v. Sanders, No. 3:09-cv-00844, 2011 WL 2971156, at *4 (S.D.W.Va. June 29, 2011); United States v. Wells, No. 3:02cr51/LAC, 2011 WL 1527034, at *2 (N.D. Fla. March 18, 2011); United States v. Perez, No. 05-40015-FDS, 2010 WL 3169413, at *1 (D.Mass. Aug. 9, 2010); United States v. Dixon, No. 99-525-03, 2009 WL 1559947, at *3 (E.D. Pa. June 3, 2009); Abbott v. United States, No. CIV. A. 98-1449, 1998 WL 229652, at *2 (E.D.Pa. April 29, 1998); Gomez v. United States, No. 3:09-CV-0073-G, 2009 WL 1309338, at *2 (N.D.Tex. May 11, 2009).

Regarding sentencing modifications pursuant to § 3582(c) or Fed. R. Crim. P. 35, the Fourth Circuit has held that "[t]he plain text of § 3582(b) clearly states that this later modification does not affect the date on which . . . judgment of conviction became final 'for all other purposes.'" United States v. Sanders, 247 F.3d 139, 143 (4th Cir. 2001). The "all other purposes" clause includes the beginning of the § 2255(1) limitation period. Id.; accord United States v. Schwartz, 274 F.3d 1220, 1224 (9th Cir. 2001). Similarly, the Eighth Circuit has held that a sentence modification pursuant to Rule 35(b) is not a "judgment of conviction," and did not, therefore, begin a new one-year period in which a petitioner could file a motion pursuant to § ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.