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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, 2014 WL 1228194 (3d Cir. Mar. 26, 2014). This Court sees no reason to depart from those superior courts' holdings. Therefore, Alleyne cannot serve as a basis to apply § 2255(f)(3).

As for Descamps v. United States, 133 S.Ct. 2276 (June 20, 2013), in that case the Supreme Court held that a California petitioner's state law conviction for burglary should not have counted as a violent offense under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii). Id. at 2293. The Descamps court made clear that the so-called "modified categorical" approach for determining when a defendant's prior conviction counts as one of ACCA's enumerated predicate offenses can only be used with criminal statutes that list multiple potential offense elements in the alternative, such that it is not immediately clear which elements "played a part in the defendant's conviction." Id. at 2283.

Descamps, 133 S.Ct. 2276, just like Alleyne, 133 S.Ct. 2151, was before the Supreme Court on direct review, not collateral review. Nor did the Supreme Court announce in Descamps, or in any subsequent case for that matter, that its holding was to apply retroactively on collateral review. Most importantly, Descamps did not announce a new rule of law. "[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301 (1989) (citations omitted).

In the Descamps opinion, the Supreme Court repeatedly used language to communicate that it was clarifying existing law and reaffirming clearly established Supreme Court precedent over the approach of a single Circuit Court. E.g., 133 S.Ct. at 2283 ("Our caselaw explaining the categorical approach and its modified' counterpart all but resolves this case."), at 2285 ("Applied in that way-which is the only way we have ever allowed-the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute."), at 2288 ("[The Ninth Circuit's ruling flouts our reasoning-here, by extending judicial factfinding beyond the recognition of a prior conviction. Our modified categorical approach merely assists the sentencing court in identifying the defendant's crime of conviction, as we have held the Sixth Amendment permits. But the Ninth Circuit's reworking authorizes the court to try to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct."). It is clear then that Descamps did not announce a new rule, but rather reaffirmed existing Supreme Court precedent while rejecting the Ninth Circuit Court of Appeal's departure from established Supreme Court caselaw.[2] Therefore, Descamps cannot serve as a justification for the application of §2255(f)(3).

Pursuant to 28 U.S.C. § 2255 and Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court has considered the grounds set forth in Petitioner's motion, and finds the motion has no merit as it is untimely, not subject to any exception to § 2255(f)'s statute of limitations and therefore, must be dismissed.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires the district court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Accordingly, the Court must determine whether to grant Petitioner a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) even though Petitioner has not requested one.

According to 28 U.S.C. § 2253, a habeas petitioner will only be allowed to appeal issues for which a certificate of appealability has been granted." Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009). A petitioner is entitled to a certificate of appealability only if he can make a substantial showing of the denial of a constitutional right. Id. (citing 28 U.S.C. § 2253(c)). Under this standard, a petitioner must demonstrate that "reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000). For cases in which a district court denies a habeas claim on procedural grounds, the habeas court should issue a certificate of appealability only if the petitioner shows that (1) jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and (2) jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id.

Consistent with the discussion above, the Court finds that no reasonable jurists would differ on the Court's treatment of Petitioner's 2255 motion. Petitioner's 2255 motion is untimely, no exemptions to the applicable statute of limitations apply, and the cases upon which Petitioner relies to support his claims either do not apply retroactively or do not announce newly recognized rights. Therefore, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).[3]

CONCLUSION

For the reasons stated above, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("2255 motion") (Doc. 1) is DISMISSED as untimely. No Certificate of Appealability shall issue from this Court.

IT IS SO ORDERED.


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