United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN J. THARP, Jr., District Judge.
Christopher Jones was indicted and convicted of federal drug and firearms charges in 2005. Case No. 05 CR 45, Dkt. 1, 26, 39. Now before the Court is Jones' motion to vacate, correct or set aside his sentence pursuant to 28 U.S.C. § 2255 and what the Court construes to be Jones' motion for a retroactive application of the sentencing guidelines amendment for offenses involving crack cocaine pursuant to 18 U.S.C. § 3582(c). For the reasons stated below, both motions are denied.
On October 12, 2005, Jones entered a blind guilty plea on all six counts of the superseding indictment charging drug and firearms offenses. Dkt. 39. He was sentenced on March 22, 2006, to a total term of 181 months in prison and three years of supervised release. Dkt. 55. Jones failed to file a notice of appeal within ten days of his sentencing (Dkt. 57), the time allotted by the 2005 version of Federal Rule of Appellate Procedure 4(b)(1)(A).
On January 23, 2007, Jones filed a pro se motion to vacate, correct or set aside his sentence pursuant to 28 U.S.C. § 2255. Case No. 07 C 432, Dkt. 1. He asserted three claims: first, that his conviction violated the Fourth Amendment; second, that his trial counsel provided ineffective assistance by failing to appeal the denial of a motion to suppress; and third, that his trial counsel was ineffective for failing to file a notice of appeal - which Jones claimed that he had demanded that his counsel either do or withdraw from the case. Id. at 4, 9. On May 7, 2007, counsel was appointed for Jones, after which Jones added additional ineffective assistance of trial counsel claims to his motion. Dkt. 35. The district court (Lindberg, J.) granted in part and denied in part Jones' motion. 2009 WL 424469, at *1 (N.D. Ill. Feb. 19, 2009). The court denied Jones' motion as it related to the Fourth Amendment claim and all but one of the ineffective assistance claims. Id. at *5-7.
As to Jones' claim that his trial counsel was ineffective for failing to file a notice of appeal, the government conceded, and the court granted Jones' motion. Id. at *7. Judge Lindberg wrote,
As a remedy, the government proposes that the Court vacate the judgment and issue a new, identical judgment that would re-start the 10-day period for Jones to file a notice of appeal... Jones does not object to this remedy, but claims that vacating the judgment alone is not sufficient relief in light of trial counsel's other alleged errors.
The court set a status hearing for February 24, 2009, five days later, and added to its order,
Unless there is an objection from one of the parties, on February 24, 2009, the Court will vacate the judgment and re-enter an identical judgment in the underlying criminal case... Jones will have ten days from February 24, 2009 to appeal the judgment...
Id. at *8; Case No. 07 C 432, Dkt. 51; Case No. 05 CR 45, Dkt. 82.
On February 25, 2009, the court held a status hearing. Case No. 07 C 432, Tr. of 2/25/09 Status Hearing ( see Case No. 12 C 9407, Dkt. 17-1). The court reiterated that it had issued an order on February 19, and that "the appropriate remedy for Mr. Jones' successful ineffective assistance of counsel claim" was to "vacate the... March , 2006 judgment... and reenter an identical judgment...." Id. at 2. The court gave the parties an opportunity to express an opinion regarding "how the Court intends to proceed, with regard to reentering the earlier sentence and, thus, opening the appeal window for ten days." Id. Jones' counsel requested that the court "vacate the sentencing; let me address the issues of the sentencing that I believe were improperly addressed before you; and then, with that in mind, resentence him, and then let us file the notice of appeal." Id. at 3. The government responded that the potential error raised by the defendant related to a two-point enhancement for possessing a gun with an obliterated serial number and that there was no error and that the issue had not been properly raised in any event. Id. at 4-5. The court initially indicated that it would consider whether to reopen the sentencing:
take a look at that, and assuming that we disagree with [the defendant], is there any other reason not to reissue the original sentence [?]... We'll take a look a little more closely at your issue on that, and we'll set another date and/or reissue, as our determination indicates... I don't think [a further submission is] necessary at this point, but if we do, I'll ask you to do it... So we'll either set another date or we'll reissue the original sentence, with a memorandum of opinion, on the issue that you just raised.
Id. at 4-6.
The same day, the court entered an ...