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Ricky Phillips v. United States of America

December 17, 2012

RICKY PHILLIPS, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

In 2005, Ricky Phillips was sentenced as an armed career criminal pursuant to 18 U.S.C. § 924(e) after a jury found him guilty of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). After sentencing, Phillips appealed his conviction and sentence in the Seventh Circuit. On December 7, 2005, the Seventh Circuit granted defense counsel's motion to withdraw and Phillips was appointed appellate counsel from the Office of the Federal Public Defender. Subsequently, on October 31, 2006, the Seventh Circuit also granted appellate counsel's motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and dismissed the appeal. Phillips, acting pro se, now moves to correct judgment, contending that he does not have the requisite prior convictions to qualify as an armed career criminal under 18 U.S.C. § 924(e) because his prior conviction have expired and his civil rights have been restored. For the following reasons, his motion is denied.

I.

After the Seventh Circuit dismissed his appeal, Phillips did not pursue any collateral challenge to his conviction or sentence until 2011. Phillips first filed a motion pursuant to 28 U.S.C. § 2241 on August 8, 2011, see Dkt. No. 11 C 5621 (N.D. Ill.), but I dismissed the petition without prejudice for failure to pay the filing fee. The Seventh Circuit affirmed that dismissal in February 2012, and stated that Phillips was free to file a new § 2241 petition in the district court, see Case No. 11-3483 (7th Cir.). In the mean time, on November 28, 2011, more than five years after the appeal in his criminal case was dismissed, Phillips filed the present "Motion to Correct Judgment." Phillips filed the motion under the criminal docket, see Dkt. No. 03 CR 465-1 (N.D. Ill.), and nowhere in the motion did he identify under which statute or rule he was purportedly entitled to relief.

Phillips claims that he should not have been sentenced as an armed career criminal because his prior state convictions, which were used as the basis for his armed career criminal status, had expired and "letter(s) of restoration of rights were given Petitioner as to each offense." (§ 2255 Pet., at 2-3). Title 18 of the United States Code limits what can count as a conviction for purposes of determining armed career criminal status:

Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

18 U.S.C. § 921(a)(20). Relying primarily on Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009), which interpreted § 921(a)(20), Phillips argues that because the restoration letter(s) he received from the state did not expressly state that he could not possess firearms, I did not have the authority to sentence his as an armed career criminal.

In my June 1, 2012, order (see Dkt. No. 03 CR 465-1), I warned Phillips that I would consider his motion to be a petition under 28 U.S.C. § 2255 unless he withdrew the motion. Though Phillips fails to identify the statutory grounds for his motion, it is, in fact, the functional equivalent of a petition brought pursuant to § 2255. See United States v. Evans, 224 F.3d 670, 672 (7th Cir. 2000) ("any post-judgment motion in a criminal proceeding that fits the description of § 2255 ¶ 1 is a motion under § 2255 "). Having warned Phillips that I planned to construe his motion as one under § 2255 and that he will have to seek the permission of the Seventh Circuit before filing any successive § 2255 motions, I now rule on the motion.

II.

The first hurdle for petitioner is that he waited too long to file his § 2255 petition. Motions under § 2255 are subject to a one-year statute of limitations, running 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 ...


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