United States District Court, C.D. Illinois, Springfield Division
SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on Respondent United States of America's Motion to Dismiss (d/e 4) Petitioner John Beard's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1). Because the Petition is untimely, the Motion to Dismiss is GRANTED.
In October 2002, Petitioner was charged in a superseding indictment with (1) possession of 500 or more grams of a substance or mixture containing cocaine with intent to distribute, in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 1); (2) possession of five or more grams of a mixture or substance containing cocaine base ("crack") with intent to distribute, in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 2); and (3) knowingly carrying a firearm during and in relation to a federal drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 3). See United States v. Beard , No. 02-30040 (C.D. Ill.) at d/e 18. In November 2002, a jury found Petitioner guilty of all three counts. Id. at d/e 56; see also Minute Entry of November 27, 2002. In May 2003, the Court sentenced Petitioner to 248 months' imprisonment, consisting of 188 months on each of Counts 1 and 2 to run concurrently and 60 months on Count 3 to run consecutively to Counts 1 and 2. Id. at d/3 69; see also Minute Entry of May 23, 2003.
Petitioner appealed, and the Seventh Circuit affirmed the conviction and sentence. United States v. Beard , 354 F.3d 691 (7th Cir. 2004). The United States Supreme Court denied certiorari on June 14, 2004. Beard v. United States , 542 U.S. 915 (2004).
In May 2005, Petitioner filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, Or Correct Sentence by a Person in Federal Custody. See Beard v. United States , Case No. 05-3113 (C.D. Ill.) at d/e 1. Petitioner asserted that (1) his counsel was ineffective, (2) his sentence was based on the false testimony of Homer Harris concerning the quantity of drugs for which Petitioner should be held accountable, and (3) his rights to due process and trial by jury were violated. Id . In October 2005, the Court, United States District Judge Jeanne E. Scott, denied Petitioner relief on Claims 1 and 3 but ordered an evidentiary hearing on Claim 2 to consider whether Petitioner's sentence was based on false testimony. Id. at d/e 8, pp. 2-3.
Following the evidentiary hearing, that Court found Homer Harris credible but believed that Harris was confused about some of the transactions, which resulted in a higher drug quantity attributed to Petitioner. See Tr. of February 28, 2006 proceedings, pp. 108-112 (d/e 13). The Court granted the petition in part, finding that while the judgment of conviction on each of the three counts was not subject to collateral attack, the sentence imposed was subject to collateral attack because the sentence was based on an overstated quantity of drugs. See Minute Entry of February 28, 2006.
A new Presentence Investigation Report (PSR) was prepared, omitting the drug amounts the Court had previously found were overstated. See Case No. 05-3113, Tr. at 112 (d/e 13) (ordering preparation of PSR omitting paragraph 22); Case No. 02-30040, PSR (d/e 116). At the May 25, 2006 resentencing hearing, Petitioner objected to the paragraphs of the PSR which held him accountable for 2, 765.45 grams of cocaine as relevant conduct (down from the 8, 889.05 grams attributed to Petitioner in the original PSR). Compare May 6, 2003 PSR (d/e 71) with April 4, 2006 PSR (d/e 116).
The Court overruled the objections and adopted the PSR's findings. See Case No. 02-30040, Tr. at 79-80 (d/e 117); Sentencing Opinion at 2 (d/e 108). The Court found that Harris was credible with respect to the amounts set forth in the PSR. The Court also found that the Government established the drug amounts by a preponderance of the evidence. See Opinion at 2 (d/e 108). The Court resentenced Petitioner to 248 months' imprisonment (the same sentence originally imposed) consisting of 188 months' imprisonment on each of Counts 1 and 2, to run concurrently, and 60 months' imprisonment on Count 3 to run consecutively to Counts 1 and 2. Id. at 3.
Petitioner appealed, arguing that Harris was not a credible source. United State v. Beard, 219 F.App'x 536 (7th Cir. 2007). On March 13, 2007, the Seventh Circuit affirmed, finding it was within the district court's discretion to find Harris credible. Id . Petitioner did not file a petition for writ of certiorari with the United States Supreme Court.
On July 16, 2008, Petitioner filed an Amended Motion For Retroactive Application of the Sentencing Guidelines to Crack Cocaine Offense. See Case No. 02-30040 at d/e 137. On October 20, 2008, the Court granted the Motion and reduced Petitioner's sentence to a total of 211 months' imprisonment, consisting of 151 months' imprisonment on Counts 1 and 2 to run concurrently to each other and 60 months' imprisonment on Count 3 to run consecutively to Counts 1 and 2. Id. at d/e 141.
In September 2011, Petitioner filed a second Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense. Id. at d/e 143. In March 2012, this Court denied the Motion because Amendment 750 did not result in a lower sentencing range for Petitioner. Id. at d/e 148.
In November 2012, Petitioner sought permission from the Seventh Circuit to file a second or successive motion under 28 U.S.C. § 2255. The Seventh Circuit dismissed the request, stating that Petitioner did not have to seek authorization to file a successive collateral attack under § 2255 because his first § 2255 motion was partially successfully and resulted in a new judgment. United States v. Beard , Case No. 12-3530 (7th Cir. Nov. 13, 2012) (available in Case No. 02-30040 at d/e 158).
On July 29, 2013, Petitioner filed a pro se letter in which he asked that counsel be appointed to litigate issues raised by the United States Supreme Court's decision in Alleyne v. United States , 133 S.Ct. 2151 (2013) (holding that "any fact that increases the mandatory minimum is an element' that must be submitted to the jury"). Case No. 02-30040 at d/e 160. On October 10, 2013, this Court denied Petitioner's request but granted Petitioner "leave" to file a motion under § 2255. Id. at d/e 164. The Court ...