United States District Court, C.D. Illinois, Peoria Division
TOMMY L. RUTLEDGE, Petitioner,
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 2012, Petitioner was convicted of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) upon a plea of guilty. (Judgment, United States v. Rutledge , No. 11-cr-10085 (C.D. Ill. 2012), Doc. 20). He was sentenced to a term of 120 months' imprisonment and judgment was entered on July 24, 2012. ( Id. ). However, judgment was later amended on March 6, 2014 to make the restitution Petitioner was previously order to pay, jointly and severally liable as to him and another criminal defendant in a separate case. (No. 11-cr-10085, May 6, 2014 Minute Entry, Doc. 23).
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. (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. (Doc. 1 at 5). These grounds are without merit.
As an initial matter, Petitioner's 2255 motion 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 after he was sentenced, so the 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 July 24, 2012. (No. 11-cr-10085, Doc. 20). Petitioner had fourteen days from the entry of that judgment to file a notice of appeal. Fed. R. App. P. 4(b). Therefore, Petitioner's conviction became final on August 7, 2012, when his time to file a notice of appeal expired. Under § 2255(f), Petitioner had one year from the date upon which his conviction became final-August 7, 2012-to file his § 2255 Motion, which means his petition was due to be filed on or before August 7, 2013.
Although Petitioner's judgment was amended on March 6, 2014, the amendment had no effect on the statute of limitations imposed by 28 U.S.C. § 2255(f). Section 3582(b) of Chapter 18 of the United States Code provides that:
Effect of finality of judgment.-Notwithstanding the fact that a sentence to ...