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Jamell C. Newbern v. United States of America

December 26, 2012

JAMELL C. NEWBERN,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER

Before the Court is movant Jamell C. Newbern's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Doc. 1). Movant contends that pursuant to Chambers v. United States, 129 S. Ct. 687 (2009), and Begay v. United States, 553 U.S. 137 (2008), his prior state reckless discharge of a firearm conviction was erroneously classified as a crime of violence which resulted in him being classified as a career offender, and that therefore, he should be resentenced without the career offender enhancement. For the reasons that follow, the motion is dismissed as untimely.

I. Background

In April 2005, movant was charged by indictment with possession with intent to distribute a mixture or substance containing cocaine base, 21 U.S.C. § 841(a)(1). On August 3, 2005, movant plead guilty to that charge, and on December 7, 2005, he was sentenced as a career offender to 300 months' imprisonment. At the time of sentencing, movant was classified as a career offender under U.S.S.G. § 4B1.1 , the offense guideline applicable to a defendant convicted of committing a crime of violence or a controlled-substance offense after incurring two prior convictions for crimes of violence or controlled-substance offenses. U.S.S.G. § 4B1.1(a), (b). The Court found that two of movant's convictions qualified as crimes of violence, i.e., reckless discharge of a firearm, 720 ILL. COMP. STAT. 5/24-1.5, which resulted in a man being shot in the leg, and aggravated battery ,720 ILL. COMP. STAT. 5/12-4(b)(6),

after movant attempted to disarm a police officer. Accordingly, the Court found movant to be a career offender with a total offense level of 34 and a criminal history category VI, resulting in an imprisonment range of 262 to 327 months. Applying the guidelines as advisory and considering the factors in 18 U.S.C. § 3353(a), the court sentenced plaintiff to 300 months' imprisonment and a ten-year term of supervised release. Movant objected to his classification as a career offender on the basis that his conviction for reckless discharge of a firearm was considered a crime of violence. With regard to that objection, the Court stated:

While the defendant is labeled a career criminal for one aspect of the Court's consideration, that being the advisory Sentencing Guidelines, even before considering his career criminal status, and again, that for purposes of the advisory Guidelines, this defendant's Criminal History Category was already a VI, the highest possible level.

His criminal history is characterized with two weapons charges, another where he tried to take a police officer's weapon; and when that failed he struck the officer about the head with his fist. Defendant has another conviction for obstructing and resisting that involved physically pushing and striking a police officer. He has two other drug convictions. He's 30 years old now, and all of this and more started at age 22. So, it seems to this Court that the label 'career criminal' is simply a description of what he does, not just a calculation under the Guidelines.

On December 21, 2005, movant filed a notice of appeal from that judgment, contending that reckless discharge of a firearm in violation of Illinois law was not a crime of violence. On March 13, 2007, the Seventh Circuit Court of Appeals entered an opinion upholding that judgment, finding that reckless discharge of a firearm in violation of Illinois was a crime of violence. See United States v. Newbern, 479 F.3d 506, 507 (7th Cir. 2007).

On January 27, 2010, movant filed his § 2255 motion, contending that pursuant to Chambers and Begay his prior reckless discharge of a firearm conviction was erroneously classified as a crime of violence which resulted in him being classified as a career offender. After examining the motion, the Court ordered the government to respond to movant's motion (Doc. 2). On August 20, 2010, the government filed its response to movant's motion (Doc. 5), whereby it alleged that movant's motion was untimely based upon the fact that it was Begay that initially recognized the right claimed by movant and that therefore his motion filed on January 12, 2010, was untimely as Begay was decided on April 16, 2008.

On November 29, 2010, movant filed a memorandum in support his § 2255 motion (Doc. 9). In that memorandum, movant asserts that while the government acknowledges that movant would be entitled to relief from his illegal sentence, the government would still have him serve an additional five years because movant failed to recognize within one year that Begay changed the law in his favor. Movant contends that because he was never advised by his federal public defender, or anyone else for that matter, "equitable tolling" should apply to his case. Further, he argues that because there has been a substantial change in the law as to what circumstances qualify as "actual innocence" and/or a "miscarriage of justice," jurisdiction should be allowed under either 28 U.S.C. §§ 2241 or 2255 despite a late filed petition. Lastly, movant directed the Court to Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011), a case which was pending before the Seventh Circuit at that time, and suggested that the Court defer any further action until that opinion was issued. That opinion was decided on June 3, 2011, but an amended opinion was issued on December 6, 2011.

On December 28, 2011, movant filed additional authority in support his motion and an additional request for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) (Doc. 10). Movant asserted that based upon Narvaez, he was clearly entitled to the relief he requested. Additionally, movant argued that he may also be entitled to an additional sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the Sentencing Guidelines. On January 23, 2012, the government filed its supplemental response to movant's motion (Doc. 14), contending that movant's original filed petition was untimely, that "actual innocence" did not provide an exception to the time limits proscribed by § 2255, that equitable tolling should not apply, that a "miscarriage or justice" or due process violation has not occurred, and that Narvaez was distinguishable. On September 25, 2012, movant filed a motion for hearing (Doc. 15). For the reasons that follow, movant's motion is dismissed as being untimely. His motion for hearing (Doc. 15) is denied as moot.

II. Analysis

A motion by a federal prisoner for post-conviction relief under 28 U.S.C. § 2255 is subject to a one-year time limitation that runs from one of four specified dates, generally the date on which the conviction becomes final. Clay v. United States, 537 U.S. 522, 524-25 (2003); see 28 U.S.C. § 2255. More specifically, the one year limitation period runs from the latest of the following dates:

(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 ...


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