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Harr v. United States

United States District Court, C.D. Illinois, Peoria Division

April 28, 2014

RICHARD E. HARR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER & OPINION

JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on April 21, 2014. (Doc. 1). In 2006, Petitioner was convicted of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) upon a plea of guilty. (Judgment, United States v. Harr, No. 05-cr-10041 (C.D. Ill. 2006), Doc. 91). He was originally sentenced to a term of 240 months' imprisonment. ( Id. ). However, this sentence was later reduced to 160 months upon the Government's Rule 35 motion. (May 15, 2009 Minute Entry, Doc. 120, No. 05-cr-10041).

Section 2255 of Chapter 28 of the United States Code provides a basis for attacking a federal sentence on the grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires district courts to conduct preliminary reviews of § 2255 motions. The rule states in relevant part: "If it plainly appears from the motion, any attached exhibits, and the record of the prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States Attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order."

In the present motion, Petitioner presents two grounds upon which he claims he is being held in violation of the Constitution, laws, or treaties of the United States. First, he argues that Alleyne v. United States, 133 S.Ct. 2151 (June 17, 2013), requires that sentencing enhancements must be properly noticed in an indictment and proven to a jury beyond a reasonable doubt to satisfy the Sixth Amendment of the United States Constitution. (Doc. 1 at 4). Second, Petitioner argues that pursuant to Descamps v. United States, 133 S.Ct. 2276 (June 20, 2013), a prior conviction for possession of methamphetamine could not be used as a predicate for application of a sentencing enhancement under 21 U.S.C. § 851. ( Id. at 5). These grounds are without merit.

Petitioner's first and unavoidable impediment is that his petition is untimely on its face. Section 2255(f) provides:

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.

Petitioner did not appeal his judgment, so his conviction became final when the deadline for filing a notice of appeal expired. Clarke v. United States, 703 F.3d 1098, 1100 (7th Cir. 2013). Petitioner was sentenced and judgment was entered on August 4, 2006. (No. 05-cr-10041, Doc. 91). Petitioner had ten days thereafter to file a notice of appeal. Fed. R. App. P. 4(b) (2005). Therefore, Petitioner's conviction became final on August 14, 2006, when his time to file a notice of appeal expired. Under § 2255(f), Petitioner had until August 14, 2007, to file his § 2255 motion.[1]

Undoubtedly, Petitioner thinks that 28 U.S.C. § 2255(f)(3) applies to his 2255 motion, but it does not. Section 2255(f)(3) permits the one year statute of limitation period for filing a 2255 motion to begin running on 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. Although both the cases upon which Petitioner relies were decided less than one year ago, in June 2013, neither case contains rules or newly recognized rights that have been made retroactively applicable to cases on collateral review by the Supreme Court or any lesser federal courts.

As for the case of Alleyne v. United States, 133 S.Ct. 2151 (June 17, 2013), the Seventh Circuit has already explicitly 1) recognized that the new rule announced in that case was not held by the Supreme Court to apply retroactively on collateral attack and 2) prognosticated that it is highly unlikely Alleyne will ever be held to apply retroactively on collateral attack in the future. Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013), see United States v. Harris, 741 F.3d 1245, 1250 (11th Cir. 2014) (explaining that Alleyne has not been made retroactive through any combination of cases that necessarily dictate retroactivity under the precedent of Tyler v. Cain, 533 U.S. 656, 666 (2001)). The Simpson court explained that Alleyne was not before the Supreme Court on collateral review nor did the Court declare that Alleyne 's new rule applied retroactively on collateral attack. 721 F.3d at 876. The Simpson court recognized that since 1) Alleyne was an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000) and 2) since the Supreme Court has held that the rules based on Apprendi do not apply retroactively on collateral review, then the implication is that the Supreme Court will not declare Alleyne to be retroactive. 721 F.3d at 876.

Although under Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001), any district court, court of appeals, or the Supreme Court can render a decision that a newly recognized right by the Supreme Court is retroactively applicable to cases on collateral review for purposes of satisfying § 2255(f)(3), this Court has not found any court that has done so. In fact, every Court of Appeals to consider the issue has held that Alleyne 's rule does not have retroactive application. Simpson, 721 F.3d 875 (7th Cir.); Harris, 741 F.3d 1245 (11th Cir.); In re Payne, 733 F.3d 1027, 1030 (10th Cir. 2013); United States v. Redd, 735 F.3d 88, 91-92 (2d Cir. 2013); United States v. Winkelman, No. 03-4500, ...


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