United States District Court, S.D. Illinois
ANTONIO L. FLOWERS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on Petitioner Antonio L. Flowers' motion to vacate, set aside, or correction sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). For the following reasons, the Court denies Flowers' motion.
On January 25, 2011, Flowers entered a plea of guilty to (1) distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (2) possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). See United States v. Flowers, Case No. 10-cr-40037-JPG (Doc. 23). On May 11, 2011, the undersigned Judge sentenced Flowers to 96 months imprisonment, four years supervised release, a $200 special assessment, and a $200 fine (Doc. 35 in criminal case).
Flowers filed an appeal (Doc. 41 in criminal case). Counsel filed an Anders brief in which she identified the following potential issues: (1) the district court's inclusion of Flowers' conduct from crack sales that occurred between May 2008 and May 2010 in determining his relevant conduct; (2) the two-level enhancement for possession a gun during the commission of the offense; and (3) the reasonableness of Flowers' 96-month, within-guidelines sentences. The Seventh Circuit agreed with counsel that these issues had no merit, and denied the appeal and entered judgment on December 19, 2011 (Doc. 59 in criminal case). Flowers did not apply for a writ of certiorari to the Supreme Court of the United States.
On April 28, 2014, Flowers filed his motion under § 2255 raising three grounds. In Ground One, Flowers argues counsel was ineffective for (1) failing to argue that the relevant conduct amounts must be admitted by defendant or found by a jury beyond a reasonable doubt; (2) failing to advise Flowers that a fact that triggers a statutory mandatory minimum is an element of the charged offense that must be found by a jury beyond a reasonable doubt; and (3) failing to object and argue that the Court incorrectly applied the enhancement pursuant to U.S.S.G. § 2D1.1(b). In Ground Two, Flowers argues he is "actually innocent" of the § 2D1.1(b) enhancement. In Ground Three, Flowers argues the district court erred in applying § 2D1.1(b). The Court will turn to consider Flowers' claims.
As an initial matter, the Court must determine whether Flowers' motion is timely. Prisoners used to be able to file motions under § 2255 at any time during their sentences. However, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, tit. I, § 106 (codified at 28 U.S.C. §§ 2244(a) & (b), 2255), which added a one-year limitations period for a motion attacking a sentence. The one-year limitations period runs from the latest of four events:
(1) the date on which the judgment of convictions becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution 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.
28 U.S.C. § 2255(f).
A judgment of conviction becomes final for § 2255 purposes when the time expires for filing a petition for certiorari contesting the appellate court's decision affirming the conviction. Clay v. United States, 537 U.S. 522, 524-25 (2003). The period for filing such a petition expires 90 days after the court of appeals enters judgment or denies a petition for rehearing. S.Ct. R. 13. Here, because the Seventh Circuit entered judgment on December 19, 2011, Flowers had until March 18, 2012 to file his petition for certiorari. Thus, he had until March 18, 2013, to file his § 2255 motion. This motion, filed April 28, 2014, clearly fails to ...