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Coles v. United States

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

October 16, 2014

DENNIS COLES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

OPINION

SUE E. MYERSCOUGH, District Judge.

Petitioner Dennis Coles is confined in the Federal Correctional Institution in Cumberland, Maryland, serving a 293-month sentence imposed by United States District Judge Michael P. McCuskey[1] of the United States District Court for the Central District of Illinois. Petitioner received an enhanced sentence under the Armed Career Criminal Act (18 U.S.C. § 924(e).

In September 2014, Petitioner filed a Motion to Correct Sentence Pursuant to 28 U.S.C. § 2241 (d/e 1) in the United States District Court for the District of Maryland.[2] In that Motion, Petitioner argues that, in light of Descamps v. United States , 133 S.Ct. 2276 (2013), his 1992 Michigan drug conviction does not meet the definition of a "serious drug offense" under the Armed Career Criminal Act.

The Maryland Court concluded that the Motion was not properly filed under § 2241 and was more properly considered a Motion filed pursuant to 28 U.S.C. § 2255. The Maryland Court transferred the case to this Court.

Whether the Court considers the Motion as brought under § 2241 or § 2255, the Court must promptly consider and dismiss the Motion if it plainly appears that Petitioner is not entitled to relief. See Rule 4 of the Rules Governing Section 2254 Cases for the United States District Courts, which applies to § 2241 petitions pursuant to Rule 1(b) of the Rules Governing Section 2254 Cases ("The district court may apply any or all of these rules to a habeas petition" not brought pursuant to § 2254); Montana v. Cross, No. 14-cv-1019, 2014 WL 5091708, at *1 (S.D. Ill. Oct. 10, 2014) (applying Rule 4 of the Rules Governing Section 2254 Cases to a § 2241 petition); see also Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. A preliminary review of Petitioner's Motion shows that the Motion is a successive § 2255 motion for which Petitioner has not obtained approval from the Court of Appeals to file. Therefore, the Motion is dismissed.

I. BACKGROUND

On July 23, 2002, a jury found Petitioner guilty of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). See July 23, 2002 Minute Entry, United States v. Coles, No. 00-20051 (C.D. Ill.) (hereafter referred to as Criminal Case No. 00-20051). On February 14, 2003, the Court sentenced Petitioner as an Armed Career Criminal to 293 months' imprisonment. See February 14, 2013 Minute Entry, Criminal Case No. 00-20051.

The Armed Career Criminal Act provides for a 15-year minimum sentence for a person who violates § 922(g) and has three previous convictions for a violent felony or serious drug offense or both. 18 U.S.C. § 924(e). The Act defines a "serious drug offense" to include an offense under state law involving manufacturing, distributing, or possession with intent to manufacture or distribute a controlled substance for which the maximum term of imprisonment of ten years or more is prescribed by law. 18 U.S.C. § 924(e)(2)(A)(ii).

Petitioner was classified as an armed career criminal based on three prior convictions: (1) a 1992 Michigan conviction for delivery of cocaine; (2) a 1996 Michigan conviction for armed robbery; and (3) a 1996 Illinois conviction for delivery of cocaine. See Presentence Investigation Report (PSR) ¶ 23 (d/e 128), Criminal Case No. 00-20051; see also United States v. Coles , 97 F.App'x 665, 668 (7th Cir. 2004).

Petitioner appealed, but appointed counsel filed an Anders brief and moved to withdraw after concluding the appeal would be frivolous. The United States Court of Appeals for the Seventh Circuit granted counsel's motion to withdraw and dismissed the appeal. Coles , 97 F.App'x at 699.

In doing so, the Seventh Circuit agreed that counsel could not advance a nonfrivolous challenge to the use of the prior convictions as qualifying offenses. Id. at 668. The Seventh Circuit noted that Petitioner had challenged reliance on the "robbery conviction" on the ground that he received a sentence of lifetime probation, rather than prison. Id . The district court found that because the offense was punishable by a maximum sentence of 20 years, the offense qualified as a prior offense under § 924(e) regardless of the sentence imposed. Id . The Seventh Circuit found that this conclusion was "unassailable." Id.

However, the Seventh Circuit apparently made a typographical error on this point because Petitioner was actually sentenced to "15 months to 10 years" on the armed robbery conviction. See PSR ¶ 27 (d/e 128), Criminal Case No. 00-20051. Petitioner received lifetime probation on his 1992 Michigan drug conviction, not the 1996 armed robbery conviction, and it was the 1992 drug conviction that Petitioner challenged in the district court. See PSR ¶ 26; Addendum to PSR, p. 23 (d/e 128).

Petitioner requested rehearing. On May 19, 2005, the Seventh Circuit remanded the case for the district judge to consider whether he would impose the original sentence had he known the Sentencing Guidelines were advisory, rather than mandatory, in light of United States v. Booker , 543 U.S. 220 (2005), which was decided while the petition for rehearing was pending. See United States v. Coles, No. 03-1451 (7th Cir. May 19, 2005) (available at d/e 169, Criminal Case No. 00-20051).

On August 8, 2005, the district judge entered an order advising the Seventh Circuit that the Court would have imposed the same sentence even had the Court been aware that the Sentencing Guidelines were merely advisory. See Order (d/e 186), Criminal Case No. 00-20051. Thereafter, the Seventh Circuit affirmed Petitioner's sentence. See United States v. Coles, 153 F.App'x 397 (7th Cir. 2005). The United States ...


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