JUAN M. WHITE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MICHAEL P. McCUSKEY, District Judge.
Petitioner, Juan M. White, filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) on March 26, 2013. The government filed a Motion to Dismiss (#10) on June 5, 2013. Petitioner filed his Response (#12) to the Motion to Dismiss on June 17, 2013. For the following reasons, the government's Motion to Dismiss (#10) is GRANTED and Petitioner's Petition (#1) is dismissed for lack of jurisdiction.
Petitioner was convicted following a jury trial of distribution of 50 or more grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1), in Case No. 03-CR-20092. On November 29, 2006, Petitioner was sentenced to 360 months in the Bureau of Prisons. On March 5, 2008, the Seventh Circuit Court of Appeals affirmed Petitioner's conviction and sentence. United States v. White, 519 F.3d 342 (7th Cir. 2008). Petitioner filed a first petition to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on August 3, 2009 (Case No. 09-CV-2184). On December 4, 2009, this court issued an Opinion denying Petitioner's first § 2255 petition. This court denied a certificate of appealability on February 3, 2010. On August 23, 2010, the Seventh Circuit denied Petitioner's request for a certificate of appealability.
On April 16, 2012, Petitioner filed a pro se motion for retroactive application of the sentencing guidelines to crack cocaine offense in his criminal case. This court appointed the federal defender and on May 11, 2012, the federal defender, in agreement with the government, filed an "Amended Motion to Reduce Sentence." The amended motion was made pursuant to 18 U.S.C. § 3582(c)(2). The motion noted that under retroactive amendment 750 to the United States Sentencing Guidelines Petitioner's base offense level should be recalculated from 38 to 36, resulting in a lower total offense level of 39 (instead of the original 41). Combined with a criminal history category of II, Petitioner's guideline range was recalculated as 292 to 365 months. The motion requested "that this Honorable Court GRANT the Defendant's motion to reduce sentence and enter an Amended Judgment and Conviction sentencing the Defendant to 292 months' imprisonment..." On June 21, 2012, this court, without a hearing, entered a short form order that stated the following:
"Upon motion of [the defendant] under 18 U.S.C. § 3582(c)(2) for a reduction in the term of imprisonment imposed based on a guideline sentencing range that has subsequently been lowered and made retroactive by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(u), and having considered such motion, and taking into account the policy statement set forth at USSG § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent they are applicable,
IT IS ORDERED that the motion is:
GRANTED and the defendant's previously imposed sentence of imprisonment ( as reflected in the last judgment issued ) of 360 months is reduced to 292 months.
Except as otherwise provided, all provisions of the judgment dated 12/1/06 shall remain in effect.
IT IS SO ORDERED."
Petitioner filed the instant petition on March 26, 2013. In the petition, he argues that this court improperly found that he had, in the drug offense for which he was convicted, a "manager/supervisor" role under the Sentencing Guidelines, which earned him an enhanced sentence. He further argues that his sentence should be reduced due to acceptance of responsibility and his completion of several institutional programs in the Bureau of Prisons. Petitioner also notes that he has not received any disciplinary infractions since being sentenced. The government's motion to dismiss argues that this is a successive § 2255 petition filed without permission from the Seventh Circuit and thus should be denied. The government contends that Petitioner's claims do not arise from his June 2012 sentence modification. Rather, the government argues that the claims relate to the 2006 sentencing and were known to Petitioner at that time and could have been raised in his direct appeal or initial § 2255 petition. Thus, the government argues this court is without jurisdiction to entertain the successive § 2255 petition without permission from the Seventh Circuit and, additionally, that the petition is untimely. Petitioner, in his response, argues that the government is misconstruing his petition, and that the claims relate to the June 2012 sentence because the modified sentence still contains the "manager/supervisor" enhancement, and thus the argument against the enhancement is necessarily embedded in that sentence.
Seventh Circuit Case Law on Second or Successive Habeas ...